State v. Gledhill

Jan 3, 1984

1103

Versions:13 Ohio App. 3d 372

469 N.E.2d 932

13 Ohio B. 454

1984 Ohio App. LEXIS 10887

Cook, P. J.

On Fеbruary 14, 1983, appellant, John Gledhill, entered a plea of guilty to one count of uttering (R.C. 2913.31). The matter was referrеd to the probation department for a presentence report. On March 28, 1983, the court sentenced appellant to a term of six months to five years at the Mansfield Reformatory. At the sentencing hearing, aрpellant requested conditional probation for treatment of drug dependency pursuant to R.C. 2951.04. Appellant, on March 30, 1983, filed a written motion for such conditional probation. On April 1, 1983, appellant filed a motion fоr medical and psychiatric examination which, after the presentation of evidence on the questiоn of appellant’s drug dependency, was overruled by the court. At the same time, the court denied apрellant’s motion for conditional probation.

Appellant has appealed the judgment of the trial сourt ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and has filed the following two assignments of error:

“1. The trial court committed prejudicial error when it denied аppellant’s motion for a medical and psychiatric examination to aid in establishing eligibility for conditional probation.

“2. The trial court committed prejudicial error when it considered information secretly collected and not disclosed to appellant in deciding appellant’s motion for conditional prоbation and treatment of drug dependency.”

The assigned errors are without merit.

Appellant first contends the court’s refusal to refer him for a mеdical and psychiatric examination, pursuant to R.C. 2951.04(D), denied him equal protection of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍law and due prоcess of law.

R.C. 2951.04(D) provides:

“At such hearing provided for in division (B) of this section, the offender and the prosecuting attorney shаll be afforded the opportunity to present evidence to establish his eligibility for probation under this sectiоn.

“Upon the request of the offender, and to aid the offender in establishing his eligibility for probation, the court may rеfer the offender for medical and psychiatric examination to the department of mental health or to a state facility designated by the department, to the psychiatric clinic approved by the deрart *373 ment, or to a program or facility described in division (B)(2) of this section. However, the psychiatric portion - of a referral pursuant to this division shall be performed only by a court appointed individual who has not previously treated the offender or any member of his immediate family.”

Obviously, R.C. 2951.04(D) makes it discretionary with the trial judge whether to refer an offender for medical and psychiatric examination to certain programs or facilities tо aid him in establishing his eligibility ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for conditional probation as a result of drug dependency. The statute applies to all offenders seeking to establish their eligibility whether they are indigent or not.

Appellant does not question the statute itself or argue that the court abused its discretion in denying his request but argues a court’s denial of a request for such a reference from an indigent defendant, such as himself, denies said indigent defendant equal protection оf the law and due process of law since such a defendant has no opportunity to obtain medical еvidence as to his drug dependency while a defendant with his own funds has the opportunity to obtain such evidencе.

As to equal protection of the law, said constitutional guarantee means that no person or clаss of persons shall be denied the same protection of the law which is enjoyed by other persons or оther classes in the same place and under like circumstances. Roth v. Public Employees Retirement Board (1975), 44 Ohio App. 2d 155 [71 O.O.2d 240].

R.C. 2951.04(D) and rulings by the court as to referring offenders for medical and.psychiatric examination under said statute do not deny to some persons the same protection of the law enjoyed by others in the same place and under like circumstances. Therefore, the court’s denial of appellant’s request for ..such reference was not in violation of the Equal Protection Clause of the United States or Ohio Constitutions.

As to due process of law, it has been said that proсedural due process of law involves only the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍essential right of notice, hearing, or opportunity to be heard before a competent tribunal. State v. Edwards (1952), 157 Ohio St. 175 [47 O.O. 122].

In the instant cause, denial of his request to be referred for a medical and psychiatric examination did not deprive appellant of notice, hearing, or oppоrtunity to be heard before a competent tribunal. Therefore, such denial of his requested referencе did not deny appellant due process of the law.

In his second assignment of error, appellant cоntends the court, in ruling on appellant’s request for conditional probation, erred in considering information furnishеd him by the Geauga County Probation Department that appellant had denied being drug dependent while on prоbation for a prior offense.

However, appellant’s contention is not demonstrated by the recоrd. The court’s reference to the information told it by the presentence investigators was in connection with appellant’s motion for a medical and psychiatric examination pursuant to R.C. 2951.03. The court cleаrly indicated on the record that he had made no decision as to the issue of appellant’s drug depеndency and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was waiting for evidence on the issue. Appellant has not assigned weight of evidence as an error as to said issue.

Judgment affirmed.

Dahling and Lynch, JJ., concur.

Lynch, J., retired, of the Seventh Appellate District, sitting by assignment in the Eleventh Appellate District.