A Southwest Missouri man currently being held at the Fulton State Hospital must be returned to Polk County to stand trial for a first-degree assault charge, a three-judge panel of the state appeals court in Kansas City ruled last week.
The court's 44-page ruling upheld Boone-Callaway counties Circuit Judge Gary Oxenhandler's Dec. 11 decision that Shanon Swickheimer was entitled to be released from the state mental hospital and a "not guilty by reason of insanity" (NGRI) plea entered in his assault case be set aside.
However, the appeals court blocked Oxenhandler's order Swickheimer be given credit for the time he already has served.
The case background
According to the facts as reported in the appeals court ruling, the case began Jan. 24, 2004, when, Polk County's prosecutor charged Swickheimer "knowingly caused serious physical injury to [M.J.] by shooting her in the chest with a pellet rifle."
M.J. survived.
The probable cause statement also reported Swickheimer shot himself in the mouth and chest with the same pellet rifle.
When Swickheimer appeared March 15, 2004, for his preliminary hearing, the judge ordered a mental health exam.
A month later, the Western Missouri Mental Health Center, Kansas City, reported its opinion Swickheimer "suffers from mental disease or defect (and) lacks capacity to understand the proceedings against him and to assist in his own defense."
On May 3, 2004, the Polk County associate circuit court committed Swickheimer to the Mental Health department.
In January 2005, a Fulton State Hospital report concluded Swickheimer "currently possesses the capacity to understand the charges and proceedings against him and can assist his attorney in (his) own defense."
But the Polk County court, on April 29, 2005, ordered Swickheimer's DMH commitment to continue.
A Dec. 7, 2005, follow-up evaluation also concluded Swickheimer had the capacity to understand the proceedings against him but was not able to assist in his own defense, and the court again ordered Swickheimer's commitment to continue.
A June 8, 2006, follow-up evaluation concluded Swickheimer was competent to proceed.
More than a year later, on June 15, 2007, the trial court agreed, and after a preliminary hearing, the judge found there was probable cause to bind Swickheimer over for trial.
He was ordered to appear in the circuit court on July 9, 2007, and answer to the assault charge.
But in April 2007, before Swickheimer was returned to Polk County, the Fulton State Hospital also conducted an evaluation to see if Swickheimer "lacked criminal responsibility for his (assault) crime due to mental disease or defect."
They reported he "was incapable of knowing and appreciating the nature, quality, or wrongfulness of his conduct or [of] conforming his conduct to the requirements of the law" at the time M.J. was shot.
The docket entry for Swickheimer's July 9, 2007, court appearance showed he was there with his lawyer, he entered a not guilty by reason of insanity, and he was ordered to appear for a trial Aug. 13, 2007.
But the judge's bench note also said, "following arraignment, Swickheimer filed a Notice of Intent to Rely on Defense of Mental Disease or Defect and a separate Notice of Exclusivity of Defense of Mental Disease or Defect," which the prosecution accepted, and the judge issued an order and committing Swickheimer to DMH.
In October 2007 and April 2010, Swickheimer filed motions with the Polk County court for conditional release from his commitment. Both were denied.
On July 6, 2011, Swickheimer escaped from the St. Louis Rehabilitation Center, was recaptured Aug. 19, charged with escaping from a state mental hospital, and on April 19, 2012, was sentenced to four years in prison.
While incarcerated, he filed a habeas corpus - or release the body - case in St. Louis County Circuit Court, claiming his NGRI plea on the Polk County assault charge was constitutionally deficient.
The court denied his claims.
In April 2014, Swickheimer was released from prison and returned to the Fulton State Hospital and, on April 29, he filed a second habeas case - this time in the Callaway County circuit court, and Oxenhandler was assigned to hear it.
Oxenhandler's decision
During a hearing, Swickheimer told Oxenhandler he had no discussions with his trial counsel before the July 9, 2007, trial date in Bolivar, and he expected that appearance to result either in a plea bargain on the assault case or a trial.
Swickheimer said his trial lawyer told him no plea could be negotiated, and his only options were to claim permanent incompetence or to enter an NGRI defense.
Swickheimer said he learned July 17, 2007, the NGRI defense had been entered on his behalf. He was transferred to Fulton State Hospital the same day.
Swickheimer told Oxenhandler he consistently had advised mental health evaluators he was not interested in pleading not guilty by insanity and instead always said he had a defense that M.J. was shot accidentally when she grabbed for the pellet rifle to prevent Swickheimer from shooting himself.
In his Dec. 15 order releasing Swickheimer, Oxenhandler found "that because no meaningful record existed, Swickheimer's "testimony as to what occurred on July 9, 2007, is unchallenged.'"
Oxenhandler found, "As a result of whatever occurred" during the July 9, 2007, Polk County hearing, Swickheimer "was committed to the Department of Mental Health for an indefinite period of time -maybe his entire life. (His) due process rights were violated, a manifest injustice occurred and he is entitled to relief."
Swickheimer has stayed at the Fulton State Hospital during the appeal of Oxenhandler's orders.
The appeals court ruling
The state had argued Oxenhandler issued the writ of habeas corpus "on an alleged due process violation that was not raised by the parties and did not actually occur," but the appeals court cited a Supreme Court rule that says "any court of record, or any judge thereof" has a duty to "issue a writ of habeas corpus for the person's relief" when the court finds "that any person is illegally confined or restrained of liberty."
Although the NGRI defense legally amounts to a not guilty finding by the court, state law still says the court accepting the plea "shall order such person committed to the director of the department of mental health for custody."
Oxenhandler ruled there was no on-the-record hearing about Swickheimer's NGRI defense, whether he had other possible defenses to the assault charge or whether he agreed with the NGRI defense, and the appeals court agreed.
The appeals court also determined the state asked for the criminal responsibility determination before Swickheimer had raised the possibility of an NGRI defense, violating state law.
The appeals court said, after its mandate in the case is issued next month: "Within five days ... the Department of Mental Health shall deliver Swickheimer into the custody of the Sheriff of Polk County, Missouri, where Swickheimer shall be held on the pending charge of Assault 1st Degree, subject to further proceedings."