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Date: 12-14-2017

Case Style:


Pushmataha County Courthouse - Antler, Oklahoma

Case Number: 2017 OK 97

Judge: Noma Gurich


Plaintiff's Attorney: Jennifer L. Crabb, Assistant Attorney General

Defendant's Attorney: Peter C. Astor, Oklahoma Indigent Defense System,

Description: On November 21, 2011, Robert Parsons was charged in Pushmataha County District Court, Case No. CF-2011-146, with one count of first degree murder. According to the probable cause affidavit filed by the investigating officer, Parsons confessed to murdering his friend, Garland Cogburn, by striking him in the head with a hatchet. Simultaneously with the State's Information, an order was entered by agreement of the parties which required "Robert Parsons be immediately committed to the custody of the Oklahoma Forensic Center (OFC) in Vinita, Oklahoma for outpatient evaluation so that he may be determined competent to stand trial."1

2 After being transferred to OFC, a competency evaluation was conducted by forensic psychologist, Peter Rausch, PhD. On December 12, 2011, Dr. Rausch filed a report finding "[Parsons] was able to remain attentive and respond to questions in a clear and relevant manner. [Parsons] appeared to appreciate the nature of his legal situation and the possible outcomes of his case. [Parsons] demonstrated a general understanding of legal procedures and he exhibited the capacity to rationally assist counsel."2 Parsons' counsel stipulated to Dr. Rausch's competency evaluation and criminal proceedings resumed.
3 On February 29, 2012, Parsons withdrew his not guilty plea and entered a plea of not guilty by reason of insanity (referenced as NGRI). Approximately three months later, the State and Parsons jointly submitted records pertaining to Parsons' mental health history. Included in the materials was an evaluation prepared by Jeannie Russell Ed.D., which detailed her assessment of Parsons' mental state at the time of Cogburn's homicide. On June 6, 2012, the trial court filed a journal entry adjudicating Parsons not guilty by reason of insanity.3 As required by 22 O.S.2011 1161(A)(3) and (B),4 the trial judge directed additional mental health testing of Parsons, to determine whether he was "presently mentally ill" and "dangerous to public peace or safety."5 The State did not appeal the decision.
4 OFC forensic psychologist, Rachele L. Floyd, Psy.D performed the statutory examination of Parsons. To conduct her assessment, Dr. Floyd thoroughly reviewed all relevant court and medical records; conducted several personal interviews with Parsons; interviewed Parsons' wife; consulted Parsons' treating psychiatrist, Dr. Kendall Southern; and independently conducted psychological tests on Parsons. A report detailing her evaluation was presented to the trial court in July 2012. According to the report, Parsons' symptoms were consistent with the diagnostic criteria for bipolar disorder.6 However, Parsons' hospitalization and treatment following acquittal had abated the symptoms:
It is unclear how long his Bipolar Disorder has been in remission; however, he has not displayed any signs or reported current symptoms of mental illness since his admission to OFC. Since his admission to this facility, he has not made any threats of harm to himself or others, and appears capable of caring for his basic needs. Therefore, although he has a psychiatric diagnosis, he does not currently meet the criteria of a person who because of 'mental illness' represents an immediate 'risk of harm to self or others' as defined in Title 43A.7
It was Dr. Floyd's belief that Parsons presented "a low risk for future violence in both inpatient and outpatient settings."8 Nevertheless, Dr. Floyd concluded her report by recognizing Parsons' nonadherence to prescribed medications:
In reviewing his history, periods of medication non-compliance, including not taking medications at all and not taking them as prescribed, appear to increase his risk for leaving his home unexpectedly and/or making a suicide attempt. Based on this history, Mr. Parsons does appear to be a person who "is in need of continued supervision as a result of . . .a history of treatment noncompliance."9
Dr. Floyd recommended strict and continual supervision if the trial court were to authorize Parsons' release from OFC.
5 The trial court scheduled the statutorily required hearing for August 8, 2012, to determine whether Parsons should remain in OFC custody. The only evidence presented at the hearing was Dr. Floyd's report, which was admitted by stipulation of the parties. Ostensibly relying on this report, the trial judge found Parsons "is presently still a danger to the public peace and or safety of others due to treatment non-compliance."10 The court ordered Parsons to be placed in the custody of the Oklahoma Department of Mental Health, and returned for commitment at OFC.
6 On July 30, 2013, Dr. Southern provided the trial court with an annual clinical status update regarding Parsons. According to Dr. Southern, Parsons recognized the importance of complying with his medication regimen. Dr. Southern further noted that Parsons had been given full-grounds privileges within OFC, and had exercised this authorization without any problems. Interestingly, the report also noted that in December 2012, the trial court issued an order approving a supervised therapeutic visit, which permitted Parsons to attend a family funeral.11 There is nothing in Dr. Southern's letter indicating any problems during the offsite visit. Dr. Southern ended the report by reiterating the Oklahoma Forensic Review Board's (FRB) duty to review Parsons' case under 1161(F)(3).
7 Title 22 O.S.2011 1161(F) creates the FRB. The board is composed of seven (7) members (four licensed mental health professionals, a licensed Oklahoma attorney, a retired judge, and one at-large member). Members are appointed by the Governor for five-year terms. Under this statutory section, the FRB is vested with authority to recommend therapeutic visits, conditional release, or patient discharge for NGRI acquitees. At the time of Dr. Southern's 2013 annual report, the FRB had made no recommendation with respect to Parsons.
8 The FRB met on October 22, 2014 and subsequently submitted a report to the district court, which was filed on November 7, 2014. Therein, the FRB recommended Parsons begin weekly supervised therapeutic visits at Grand Lake Mental Health Center (GLMHC). After examining Parsons' progress, the FRB determined that "[therapeutic] visits would play an integral part in his treatment process."12 It was recommended Parsons attend the day treatment program once per week for approximately two hours. The Pushmataha County District Attorney timely filed a written objection; however, the general objection provided no basis for the State's opposition.
9 A hearing was held on December 17, 2014. Testimony was offered from Dr. Satwant Tandon, a board certified psychiatrist and the clinical director of OFC. Dr. Tandon testified that therapeutic visits are necessary to provide patients with exposure to a "community setting, and that is the goal that we need to have them experience under different environments."13 According to Dr. Tandon, Parsons would be supervised by staff from both GLMHC and OFC. Additionally, after returning from therapeutic visits, Parsons would be required to submit to drug/alcohol screening and would be searched for contraband. The State offered no evidence to contradict Dr. Tandon's testimony or the FRB recommendation. Despite no evidence to rebut the FRB's treatment recommendation, the trial judge sustained the State's objection. The trial judge's ruling failed to address the express requirements set forth in 22 O.S.2011 1161(F)(3)(b)--specifically, "whether the therapeutic visit is necessary for treatment, and if necessary, the nature and extent of the visit." Instead, the order found Parsons to be "presently dangerous" and a "person requiring treatment."14 Parsons filed a petition for a writ of mandamus in OCCA case number MA-2015-71, requesting an order compelling the trial court to approve therapeutic visits. OCCA issued an order denying relief on May 27, 2015.
10 On October 29, 2015, the FRB met once again to discuss Parsons' mental health case. The FRB filed a report with the district court on December 7, 2015, notifying the parties that Parsons would soon begin therapeutic visits at GLMHC. On December 9, 2015, the State objected in the same manner as in 2014. A hearing was held on January 6, 2016, to address the therapeutic visits and the State's objection. Initially, the parties debated over whether the burden of proof rested with the State or Parsons. The trial judge never issued a ruling on the burden of proof; and consequently, the only testimony was presented on behalf of Parsons. As with the first hearing, the State presented no evidence.
11 Parsons' wife, Sara Parsons, testified during the January 2016 hearing. Mrs. Parsons indicated that she had been appointed as a patient advocate for purposes of Parsons' treatment team. She also noted that Parsons had previously been approved for therapeutic visits by the trial judge for purposes of attending medical appointments and a family funeral. According to Mrs. Parsons, each of these off-site events took place without incident.
12 Parsons additionally presented the testimony of Joseph Errico, M.D. In September 2015, Dr. Errico became Parsons' treating psychiatrist. Dr. Errico testified that patients who are housed at OFC following a NGRI judgment go through a graduated program. After patients reach the maximum benefit at a certain therapy level, they are afforded broader privileges within OFC. According to Dr. Errico, such advancements are essential to determine a patient's capacity to function properly in each environmental change. Dr Errico added that it was essential for Parsons to begin therapeutic visits so his treatment team and FRB members could assess his response and progress. In order to qualify for therapeutic visits, Dr. Errico testified that Parsons must be compliant with OFC behavioral guidelines, including no aggressive behavior within the facility for six months preceding the visits. Dr. Errico also explained the specific importance of Parsons' participation in the GLMHC day program: "we want to know how he conducts himself in [a] less restrictive environment, does he run off, does he get in aggressive behavior over there in a different environment to be able to, you know, relate to other people as he would in society."15 Dr. Errico emphasized that because the treatment team's ultimate goal is integration back into the community, it is necessary to evaluate a patient's reaction to environmental variables.
13 On February 18, 2016, the trial judge issued an order sustaining the State's objection. Virtually identical to the December 2014 order, the trial court again disregarded the necessity and scope of therapeutic visits as provided for in 1161(F)(3). On March 16, 2016, Parsons asked the OCCA to assume original jurisdiction and to direct the district court to vacate its order denying therapeutic visits. Parsons also urged the OCCA to clarify procedural requirements for 1161(F). In an order filed May 18, 2016, the OCCA transferred the matter to this Court for disposition or to determine jurisdiction. In the order, the OCCA expressed its belief that commitments and releases from mental health institutions are traditionally civil matters outside of its criminal jurisdiction. We accepted original cognizance over the matter to first address the appropriate forum for appellate review. Additionally, we previously recast the original proceeding as an appeal from the February 18, 2016, order denying Parsons therapeutic visits. Because we conclude the matter before us is civil in nature, we must address the merits of Parsons' appeal.
Appellate Jurisdiction
14 Initially, we are called on to determine whether the Oklahoma Supreme Court or the Oklahoma Court of Criminal Appeals are vested with jurisdiction to review proceedings pertaining to therapeutic visits recommended for a NGRI acquittee under 22 O.S.2011 1161(F). We hold that the trial court's decision to sustain the State's objection to therapeutic visits presents a question of civil law.16
15 On May 18, 2016, the Oklahoma Court of Criminal Appeals issued an order deferring jurisdiction in the above-styled cause to the Oklahoma Supreme Court. The OCCA concluded a transfer to this Court was appropriate because (1) Appellant was found not guilty of the underlying criminal complaint by reason of insanity; (2) as a result of the foregoing determination, Parsons has been acquitted of all criminal charges against him; (3) in accordance with 22 O.S. 1161, Appellant was placed in the custody of the Oklahoma Department of Mental Health and Substance Abuse; (4) Parsons' treatment and/or release from confinement involve issues of mental health outside of the OCCA's jurisdiction; and (5) mental health treatment and release matters are traditionally civil in nature. The OCCA transferred the case to this Court, believing the case no longer involved criminal issues:
We find nothing in Title 43A conferring jurisdiction upon [the OCCA] to address mental health treatment and commitment simply because the person was committed after being found not guilty by reason of insanity based upon a criminal charge.17
16 In every appellate proceeding, we are obligated to scrutinize our jurisdiction to adjudicate the issues presented. Hall v. GEO Group, Inc., 2014 OK 22, 12, 324 P.3d 399, 404. Article 7, 4 of the Oklahoma Constitution reads in relevant part:
The appellate jurisdiction of the Supreme Court shall be coextensive with the State and shall extend to all cases at law and in equity; except that the Court of Criminal Appeals shall have exclusive appellate jurisdiction in criminal cases until otherwise provided by statute and in the event there is any conflict as to jurisdiction, the Supreme Court shall determine which court has jurisdiction and such determination shall be final.
The foregoing provision vests this Court with authority to resolve any jurisdictional uncertainty or conflict. State ex rel. Henry v. Mahler, 1990 OK 3, 11, 786 P.2d 82, 85. Jurisdictional disputes involve questions of law and are therefore subject to de novo review. Carmichael v. Beller, 1996 OK 48, 2, 914 P.2d 1051, 1053.
17 Generally speaking, the demarcation line between civil and criminal subject matter is well-defined and obvious, but that is not always the case. Examples of legal proceedings which have both criminal and civil components include deprived child cases; expungement proceedings; actions seeking issuance of a protective order under 22 O.S. 60.4; appeals stemming from criminal bond forfeiture; and civil forfeiture suits.18
18 Parsons maintains that post-acquittal proceedings under 22 O.S.2011 1161 fall within the purview of mental health, and therefore are civil in nature. Parsons expands on this argument by noting that individuals who commit an act while in a state of insanity cannot be punished under the law. One of the critical distinctions between a criminal matter and a civil one, he posits, is whether the State is attempting to punish an individual for wrongdoing. In the present matter, according to Parsons, the focus is on treatment for mental illness rather than punitive measures. The State claims that despite Parson's acquittal, the remaining case retains its criminal status because the applicable statutory section lies within the Oklahoma Code of Criminal Procedure, and Parsons' commitment is the result of a "criminal judgment." Thus, the State argues any appeal should be brought before the OCCA. Additionally, the State argues that 22 O.S.2011 1161 is analogous to the competency statutes set forth in 22 O.S.2011 1175 -- 1175.8. The State further suggests that because the competency statutes also incorporate title 43A, but are still within the jurisdiction of the OCCA, the same must be true for 22 O.S.2011 1161.
19 In the case of Dutton v. City of Midwest City, 2015 OK 51, 21, 353 P.3d 532, 541, we said that to ascertain the underlying subject-matter of a case, it is necessary to examine "the substantive nature of the Appellant's claims to determine whether the matter is criminal or civil." The essence of a criminal judgment is punishment for wrongdoing and the amount of punishment being imposed. Mahler, 15, 786 P.2d at 86. Although Parsons could be committed under 22 O.S.2011 1161, the State may not continue his confinement as a means to impose punishment. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S Ct. 1780, 1785, 118 L. Ed. 2d 437 (1992); see also Jones v. United States, 463 U.S. 354, 369, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) (recognizing "[an insanity acquitee] may not be punished. His confinement rests on his continuing illness and dangerousness.").
20 Contrary to the State's assertion, we do not believe that the mere placement of 1161 within Title 22 renders the provision, ipso facto, a criminal enactment. Title 22 contains multiple provisions which are unquestionably matters of civil law. See e.g., 22 O.S.Supp.2016 18 & 19 (expungement of criminal records); 22 O.S.2011 20 (child placement following incarceration of single custodial parent); 22 O.S.2011 36 (civil immunity to citizens aiding peace officers); and 22 O.S.2011 60, et seq. (protective orders).
21 Finally, the present matter is distinguishable from competency proceedings. Consideration of competence in a criminal case tests an accused's ability "to understand the nature of the charges and proceedings brought against him, and [whether he] is able to effectively and rationally assist in his defense." Miller v. State, 1988 OK CR 29, 8, 751 P.2d 733, 736-737. Thus, unlike the issues pertaining to Parsons' therapeutic visits, assessment of a defendant's competence to stand trial is directly related to and an integral part of a pending criminal prosecution.19
22 Parsons is not committed because of a criminal judgment. Although the trial court's final judgment finding Parsons not guilty by reason of insanity was a criminal judgment, his present confinement at OFC stems from an order issued by Judge Wallace subsequent to the NGRI determination and is based on his ongoing mental illness. Once Parsons' acquittal became final, no criminal issues remained and the trial court's order denying the FRB recommended therapeutic visits was a civil matter, subject to this Court's appellate review.
Did the trial court err (1) by failing to place the
burden of proof on the State; and (2) by failing to
address the specific mandates of 22 O.S. 2011
23 Having determined this Court is vested with appellate jurisdiction, we must now address the merits of this appeal. Parsons raises two primary issues: (1) whether the trial court erred by failing to place the burden of proof on the State in furtherance of its objection to therapeutic visits; and (2) whether the trial court erred in failing to determine whether therapeutic visits are necessary for treatment, and if necessary, the nature and extent of the visit as required by 22 O.S.2011 1161(F)(3)(b). We answer both of these questions in the affirmative.
24 On December 1, 2015, the FRB notified the State that Parsons was scheduled to begin therapeutic visits. The State filed its objection to the proposed treatment on December 9, 2015, triggering a hearing pursuant to 1161(F)(3)(b). During the hearing on January 6, 2016, Parsons' attorney argued that the evidentiary burden associated with contesting the necessity of therapeutic visits should be placed on the State. However, the trial judge neglected to address the subject.
22 Again, 22 O.S.2011 1161(F) creates the FRB, and the board is vested with the power to initiate therapeutic visits for NGRI acquittees.20 Title 22 O.S.2011 1161(F)(3) allows the State to raise an objection to therapeutic visits, but is silent on which party bears the burden of proof in any challenge:
3. The Forensic Review Board shall submit any recommendation for therapeutic visits, conditional release or discharge to the court and district attorney of the county where the person was found not guilty by reason of insanity, the person's trial counsel, the Department of Mental Health and Substance Abuse Services and the person at least fourteen (14) days prior to the schedule visit.
a. The district attorney may file an objection to a recommendation for a therapeutic visit within ten (10) days of receipt of the notice.
b. If an objection is filed, the therapeutic visit is stayed until a hearing is held. The court shall hold a hearing not less than ten (10) days following an objection to determine whether the therapeutic visit is necessary for treatment, and if necessary, the nature and extent of the visit.
23 This Court exercises plenary, independent, and non-deferential authority in its de novo review of statutory enactments. Welch v. Crow, 2009 OK 20, 10, 206 P.3d 599, 603. Our primary goal of statutory construction is to determine legislative intent. Patterson v. Beall, 2000 OK 92, 18, 19 P.3d 839, 845. "Intent is ascertained from the whole act in light of its general purpose and objective considering relevant provisions together to give full force and effect to each." Tyler v. Shelter Mut. Ins. Co., 2008 OK 9, 12, 184 P.3d 496, 499-500. This Court will not limit consideration to one word or phrase, but will consider the various provisions of the relevant legislative scheme to ascertain and give effect to the legislative intent and the public policy underlying the intent. Am. Airlines, Inc. v. State ex rel. Okla. Tax Comm'n, 2014 OK 95, 33, 341 P.3d 56, 65. We will only employ rules of statutory construction when legislative intent cannot be ascertained. Tyler, 12, 184 P.3d at 500.
24 Parsons alleges that as the party seeking relief, the State bore the burden of proving therapeutic visits were unnecessary to treatment and/or the nature or scope of the proposed visits was inappropriate. On the other hand, the State characterizes Parsons as the "plaintiff," and contends that the burden of proof falls on squarely on his shoulders because he has superior access to the evidence. We agree with Parsons that as the objecting party, the State has the burden to support its objection by presenting evidence in opposition to the visits.
25 First, the plain language of the statute requires commencement of therapeutic visits unless a timely objection is filed by the State. The statute contains a clear distinction between therapeutic visits and a conditional release or discharge. In the case of therapeutic visits, a hearing occurs only if the district attorney voices opposition by filing an objection ( 1161(F)(3)(b)).21 Moreover, by filing an objection the State was the party pursuing a judicial remedy. This Court has repeatedly imposed the burden of proof on "the party who asserts an entitlement to the judicial relief sought." In re Initiative Petition No. 397, 2014 OK 23, 39, 326 P.3d 496, 512; Tucker v. Cochran Firm-Criminal Def. Birmingham L.L.C., 2014 OK 112, 21, 341 P.3d 673, 682. Here, the State's burden would require sufficient evidence tending to show it is more likely than not: (1) therapeutic visits are unnecessary for Parsons' treatment; and/or 2) if therapeutic visits are necessary, whether the nature and extent of the proposed therapeutic visits is excessive or inappropriate.
26 We find the language in the statute demonstrates a legislative intent to afford broad authority to the FRB when recommending therapeutic visits for NGRI acquittees. Such visits take place automatically, without a need for prior court approval, unless the State raises a timely objection. In our view, placing the burden of proof on the State, as the objecting party, is consistent with legislative intent and the purpose served by the FRB. We find the State must support any objection to therapeutic visits by a preponderance of the evidence.22 See McKellips v. St. Francis Hosp., Inc., 1987 OK 69, 10, 741 P.2d 467, 471.

Outcome: We hold that the trial court's decision to sustain the State's objection to therapeutic visits presents a question of civil law, and under the statute, the State had the burden to support any objection with sufficient evidence. As discussed previously, the State presented no evidence challenging the necessity of therapeutic visits. On the other hand, the uncontroverted evidence presented on behalf of Parsons established that therapeutic visits were a necessary part of Parsons' treatment. Based on the clear record, it was error for the trial court to sustain the State's objection to therapeutic visits. However, given the passage of time, we remand this case for a new hearing consistent with the parameters outlined by this opinion.

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