MARK DANIEL SALLEE v. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
RENDERED: January 8, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002083-MR
MARK DANIEL SALLEE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS WINE, JUDGE
ACTION NO. 97-CR-000987
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Mark Daniel Sallee (Sallee) appeals from an
order of the Jefferson Circuit Court granting a petition to
involuntarily hospitalize him for a period of 360 days pursuant
to KRS Chapter 202A and granting Central State Hospital the right
to forcible medicate him pursuant to KRS 202A.196.
Appellant raises two issues on appeal.
We affirm.
First, he questions
whether a circuit court may, under any circumstances, enter an
order authorizing forced medication of anyone properly proceeded
against pursuant to KRS Chapter 202A.
Second, he contends that
no judge of the Court of Justice may enter an order allowing
administration of mediation or treatment against the will of an
individual or without the consent of the individual’s parent,
guardian or other person legally competent to consent on his
behalf.
Having thoroughly reviewed this matter and believing
that the trial court’s order properly and thoroughly addresses
all issues raised by appellant, we adopt the trial court’s order
of August 11, 1997:
A hearing having been held on June 26,
1997 on the Commonwealth’s motion and Central
State Hospital’s petition to continue the
voluntary hospitalization and medication of
the defendant, Mark Daniel Sallee, as well as
on the defendant’s motion to prohibit forced
medication while hospitalized, the Court
having considered the written memorandum of
law, having considered the applicable case
law and being otherwise sufficiently advised,
the Court makes the following Findings of
Fact and Conclusions of Law.
FINDINGS OF FACT
1. The defendant, Mark Daniel Sallee
(“Sallee”) is charged with causing death of
Frank Pysher on January 10, 1989. He was
arrested shortly thereafter and has been
incarcerated continuously under a $100,000
cash bond.
2. Sallee was judged incompetent by the
Circuit Court, the Honorable Rebecca
Westerfield, and has been hospitalized at
Central State Hospital (CSH) since September,
1991.
3. During his stay at CSH, Sallee has
voluntarily submitted to medication
prescribed to treat the chronic schizophrenia
that Sallee suffers from. Dr. Walter Butler
(“Butler”), Dr. Jennifer Jacobs (“Jacobs”),
and Denise Robinson, R.N. (“Robinson”), all
testified Sallee is indeed very mentally ill,
even described as the most mentally ill
patient ever treated in the Grauman Unit at
CSH.
-2-
4. While the mental health professionals
do not believe Sallee is malingering, he does
not appreciate the extent of his mental
illness. Further, because of his psychosis,
he is unable to give informed consent for the
medications mental health experts testified
are necessary for his treatment.
5. On several prior occasions, Sallee has
been ordered to undergo continuous periods of
360 days of involuntary hospitalization.
During those periods, the defendant has
always agreed to medications prescribed by
the treatment psychiatrist. However, in
January 1997, he refused to take the
prescribed medication.
6. Butler, who has treated Sallee since
1994, testified that the medication has had a
positive effect on Sallee. He testified that
on a scale of 1 to 10, with 10 as the highest
level of functioning, Sallee has progressed
from a 1 to a 3. Sallee had never threatened
anyone, been restrained, made inappropriate
sexual contact or remarks, nor caused a major
incident.
7. Since Sallee has refused to take his
medication, his mental condition has
regressed rapidly. Butler testified he paces
the room, exposes himself to visitors,
refuses to maintain his personal hygiene,
talks to unseen persons, has assumed a new
identity of Rudolph Mann, claims to receive
messages from the television, talks of
violence in terms of someone injuring him, as
well as aggressive talk toward others, speaks
obsessively about guns. Several times in
open Court, Sallee challenged Butler as to
whether or not Butler “could whip his ass.”
8. Nurse Robinson testified that Sallee
has tried tripping other patients, spits on
staff, uses cuss words, is selectively mute
and is increasingly hostile.
9. Jacobs testified to similar episodes
as described by Butler and Robinson. She
further testified that Sallee made up words,
speaking in neologisms. He had not been a
management problem until February 1997.
10. Butler testified as to the
medications currently administered to Sallee
-3-
and those medications he proposed
administering. Butler discussed all the
potential side effects.
Currently Risperidone is the primary
medication administered to Sallee at ½ of the
maximum recommended dosage. Butler said
there have been few side effects. Counsel
for Sallee provided the Court with excerpts
from the Physician’s Desk Reference (PDR).
The PDR describes several potential adverse
effects. However, none of those side effects
have manifested themselves to date. A
reduction in the dosage or discontinuation of
treatment is recommended whenever adverse
conditions are noted.
Haldol, an anti-psychotic, could be
administered once a month. There are higher
risks associated with Haldol as compared to
the other medications used by CSH. However
the drug may be administered intravenously
which would be necessary should Sallee
continue to refuse treatment. Previous
treatment with Haldol had been discontinued
in 1992.
The other medication, Benztropine,
Doxyphin and Hydroxy have few or no side
effects. All of these medications have been
recommended by the Treatment Appropriateness
Review Committee at CSH.
11. Butler and Jacobs testified that
continued hospitalization and medication is
the least restrictive alternative for
treating Sallee. Further they testified that
he had benefitted from treatment and would
continue to benefit.
12. Butler testified he didn’t know if
Sallee would ever be competent to stand
trial.
CONCLUSIONS OF LAW
Counsel for defendant raises a
jurisdictional question as to the authority
of this Court to enter a forced medication
order, citing KRS 202A.196(3) which states:
If a patient still refuses to
participate in any or all aspects
of his individual treatment plan,
-4-
the hospital may petition the
District Court for a de novo
determination of the
appropriateness of the proposed
treatment. (emphasis added).
This very issue has been addressed
previously by the Kentucky Court of Appeals
in Schuttemeyer v. Com’l, Ky. App., 793 SW2d
124 (1990) and by the Supreme Court of
Kentucky in Tolley v. Com’l, Ky., 829 SW2d
580 (1995). The Schuttemeyer Court reasoned
that by reading KRS 504.110 and KRS 504.030
together, if a Court finds a defendant
incompetent and substantially unlikely to
regain competency in the foreseeable future,
then it shall conduct a hearing rearguing
involuntary hospitalization under KRS 202A.
The “Court” is defined as the Court whether
District or Circuit where the determination
of competency is made.
The Tolley Court adopted the Schuttemeyer
reasoning, stating that Circuit Court would
have jurisdiction to order involuntary
hospitalization and medication since the
District Court would have no knowledge of the
hospitalization or patient. “To allow the
District Court to then have jurisdiction over
the treatment plan established pursuant tp
the involuntary hospitalization preceding in
Circuit Court would be absurd.” Tolley v.
Com’l, supra at 583.
While counsel for the defendant may
respectfully disagree with the 4-3 decision
of the Kentucky Supreme Court, it is the law
of the Commonwealth which this trial court
will follow.
KRS 202A.026 sets out the criteria for
involuntary hospitalization, including:
“No person shall be
involuntarily
hospitalized unless such
person is a mentally ill
person:
1. Who presents a danger
or threat to self,
family, or others as a
result of mental illness;
-5-
2. Who can reasonably
benefit from treatment,
and
3. For whom
hospitalization is the
least restrictive
alternative mode of
treatment presently
available.
Both the attorney for the Commonwealth and
the defendant agree that Sallee is mentally
ill, to such an extent that the treating
mental health professionals describe him as
the sickest individual ever treated.
The defendant’s current obsession with
guns and violence in light of the pending
accusations, certainly substantiate the
Commonwealth’s claim that Sallee is a present
danger to himself or others. His behavior in
open Court, challenging Butler is indicative
of thought pattern centered on violence.
While the degree of improvement shown
while Sallee has been hospitalized has not
been great, there has been both an
improvement and an improvement which can be
measured. The statute does not require that
there be a significant improvement not total
recovery, only that the mentally ill person
may reasonably benefit from treatment. Based
upon the evaluation of the treating
professionals, it is clear that there has
been a benefit.
Hospitalization is the least restrictive
alternative mode of treatment as it is the
only mode. Sallee has demonstrated that he
will not take the medication necessary to
control his psychosis. The treatment plan
outlined by the Assessment Team deals with
graduated levels of medication depended upon
the responsiveness and cooperation of Sallee.
Hospitalization insures the safety of Sallee
and the community as well.
The challenge to forced medication under
KRS 202A. 196 is similar to that raised in
Tolley v. Com’l. Ky., 892 SW2d 580 (1995).
The focus of the treatment plan is not to
change Sallee’s appearance, to make him
competent to stand trial or to improve the
-6-
chances of securing a conviction. When asked
by defense counsel, Dr. Butler stated he
couldn’t say Sallee would ever be competent
to stand trial. Both the prosecution and the
treatment team focused on the need to provide
medication which would improve Sallee’s
mental functioning, reduce the danger of
harming himself or others and to allow him to
better care for his physical person.
Unquestionably, a person suffering from the
same mental disabilities, but not charged
with a criminal offense would seek similar
treatment. The remote chance that Sallee
might become competent to stand trial should
not deprive him or the community of the
benefit of a person who while under
medication is a “safer” person. The fact
that Sallee has not been violent while
medicated using the same medication requested
by CSH is significant.
As in Tolley, supra, no effort of the
treating mental health personnel, nor this
Court, is designed to deprive the defendant
of any constitution right guaranteed by
either the U.S. or Kentucky Constitutions.
ORDER
WHEREFORE, for the above stated reasons,
IT IS HEREBY ORDERED that the petition to
involuntarily hospitalize the defendant, Mark
Daniel Sallee, for a period of 360 days
pursuant to KRS Chapter 202A is GRANTED.
IT IS FURTHER ORDERED that the petition to
permit Central State Hospital pursuant to KRS
202A.196 to forcibly medicate the defendant,
Mark Daniel Sallee, the following treatments
and medications for treatment of his mental
illness is GRANTED.
1. Medication in any of the following
singularly or in combination:
Risperidone up to 6 mg
each day
Olanzapin up to 15 mg
each day
-7-
Haloperdol
oral/injectable up to 50
mg po/IM each day
Haloperidol Decanoate up
to 250 mg IM each month
Benztropine up to 6 mg
each day
Doxepin up to 100 mg each
day.
2.
Other treatment
Routine laboratory data,
Master chemistry (SMA 24)
CBC with differential
Thyroid Function Tests
with TSH
Urinalysis
EKG
EEG - bi-annually or as
needed
Annual physical
Annual PPD placement (TB
skin test)
Monitor vital signs
Ensure basic hygiene
needs are met.
Having determined that Schuttemeyer v. Commonwealth,
Ky. App. 793 S.W.2d 124 (1990) and Tolley v. Commonwealth, Ky.,
892 S.W.2d 580 (1995), are factually similar to the case sub
judice and are dispositive of the issues raised by appellant, and
that this Court is bound by Tolley pursuant to Kentucky Supreme
Court Rule (SCR) 1.030(8)(a), we affirm.
ALL CONCUR.
-8-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. David Niehaus
Deputy Appellate Defender
A. B. Chandler, III
Attorney General
Daniel T. Goyette
Jefferson District Public
Defender
Louisivlle, KY
Rickie L. Pearson
Assistant Attorney General
Frankfort, KY
-9-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
