When a defendant who is found to have caused the death of another but is determined not guilty by reason of insanity seeks to move from a secured mental health facility to a nonsecured facility, a trial judge has the discretion to approve, reject, or modify the recommendation, the Supreme Court of Ohio ruled today.

In a 4-3 decision, the Supreme Court affirmed an Eleventh District Court of Appeals decision upholding the trial court decision rejecting the change in residency of a man who in 1980 was arrested for murdering his parents when he was a teen. He was committed to a mental health facility soon after he was charged.

The Ashtabula County Common Pleas Court rejected a request for Delmar Hickman to be transferred from the secured Heartland Behavioral Healthcare facility to the nonsecured but monitored Richwood Residential Center. Hickman has been incarcerated or in a mental health facility since he pled not guilty by reason of insanity. He has had nonsecured movement privileges since 2004 and has been working outside of Heartland since 1987. Psychiatrists evaluating Hickman recommended that the trial court approve his change in status, but the Ashtabula County Prosecutor’s Office objected.

Writing for the Court majority, Justice Jennifer Brunner explained the prosecutor’s office did not present an independent mental health expert to testify against changing Hickman’s status, but did call on the Heartland doctor who recommended his change to testify. The doctor’s testimony raised concerns about the move, the prosecutor’s office maintained.

The trial court denied Hickman’s request to be moved. He appealed, arguing the state failed to provide clear and convincing evidence that the change should not be granted. Justice Brunner stated that the statute on the judge’s discretion in reviewing requests such as Hickman’s is not dependent on the prosecutor’s evidence. In the situation of moving from a secured facility to a nonsecured facility, the judge holds a high level of discretion and may find that the requested change poses a danger and risk to public safety.

A reviewing court may only overturn a trial court’s decision on such a decision and judgment if it finds the “ultimate conclusion was unsound and unreasonable,” the opinion stated. Neither the Eleventh District nor the Supreme Court found the trial court’s decision was unreasonable.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine and Joseph T. Deters joined Justice Brunner’s opinion.

In a dissenting opinion, Justice Michael P. Donnelly asserted that the majority misinterpreted the law, and that the statutes governing the move of an individual to a nonsecured facility require the prosecutor to present clear and convincing evidence that the change represented a threat to public safety or a threat to the safety of any person. Absent that evidence, argued Justice Donnelly, the trial court could not disapprove the recommendation on the grounds of public safety.  He went on to note that the prosecution did not present any evidence to prove Hickman posed a threat, and the only expert witness called supported the change.

The dissent concluded by stating that the majority opinion created a dangerous precedent by giving “trial-court judges carte blanche to ignore the evidence and go with their gut” when making these types of decisions. This was illustrated, argued Justice Donnelly, by the majority’s decision which simply recounts the unsettling facts of Hickman’s violent acts that occurred 40 years ago and ignores his compliance with his treatment, his 25 years of employment, his successful unsupervised engagement with the community, and recommendations of multiple professionals that his status be changed.

Justices Patrick F. Fischer and Melody Stewart joined Justice Donnelly’s dissent.

2023-0889. State v. Hickman, Slip Opinion No. 2024-Ohio-5747.

View oral argument video of this case.

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