ORIIAL

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, *

•

Plaintiff-Appellee, **

vs.

REGINA NIESEN-PENNYCUFF,

Defendant-Appellant.

n

**

MERIT BRIEF OF APPELLEE, STATE OF OHIO

DAVID P. FORNSHELL, #0071582Warren County Prosecuting AttorneyMICHAEL GREER, #0084352Assistant Prosecuting AttorneyWarren County Prosecutor's Office500 Justice DriveLebanon, Ohio 45036(513) 695-1325Facsimile: (513) 695-2962

e of Ohio

p ro'12Q1i

CLERK OF COURTSUPREME COURT OF ®HI®

rr

Case No. 2011-1070

On Appeal from theWarren County Court of

Appeals, Twelfth Appellate

District

Court of AppealsCase No. CA2010-11-112

NIC- HOLAS D. GRAMAN, #0082359Rittgers & Rittgers12 East Warren StreetLebanon, Ohio 45036(513) 932-2115Facsimile: (513) 932-2201

Counsel for Appellant, ReginaNiesen-Pennycuff

IVUV 0 i 2011

CLERK OF COURTSUPREME COURT OF OHIO

I. TABLE OF CONTENTS

II. STATEMENT OF THE CASE AND FACTS.....................................................................................1

III. ARGUMENT ..............................................................................................................................4

APPELLEE'S RESPONSE TO APPELLANT'S PROPOSITION OF LAW .................................................4

The pertinent part of R.C. 2951.041(E), "the court may order the sealingof records related to the offense in question in the manner provided insections 2953.31 to 2953.36 of the Revised Code[,]" is plain andunambiguous, requiring a trial court, in resolving an application to sealthe records of a defendant who has successfully completed anintervention in lieu of conviction program, to proceed in the mannerprovided in R.C. 2953.32, which requires a one-year waiting period formisdemeanors and a three-year waiting period for felonies.

CASES

Boley v. Goodyear Tire & Rubber Co., 125 Ohio St. 3d 510, 2010-Ohio-2550, 929 N.E.2d

448 ........................................ .......................................... ..................... ........................................6, 8Campbell v. City of Carlisle, 127 Ohio St. 3d 275, 2010-Ohio-5707, 939 N.E.2d 153 ..............5, 6, 7

State v. Fortado (1996), 108 Ohio App. 3d 706, 671 N.E.2d 622 ..........................5, 6, 7, 10, 12, 13

State v. Niesen-Pennycuff, Warren App. No. CA2010-11-112, 2011-Ohio-2704 ........10, 11, 12, 13

State v. Smith, Marion App. No. 9-04-05, 2004-Ohio-6668 ..........................................5, 7, 8, 9, 13

State v. Stanovich, 173 Ohio App. 3d 304, 2007-Ohio-4234, 878 N.E.2d 641 .........................4, 5, 6

STATUTES

R.C. 2951.041 ..................................................................................... 4, 6, 7, 8, 9, 10, 11, 12, 13, 14

R.C. 2953.31 ...............................................................................................4, 8, 9, 10, 11, 12, 13, 14

R.C. 2953.32 ...........................................................................................................4, 7, 9, 11, 13, 14

R.C. 2953.33 ...................................................................................................................................11R.C. 2953.34 ...................................................................................................................................11R.C. 2953.36 ...............................................................................................4, 8, 9, 10, 11, 12, 13, 14R.C. 2953.52 ...............................................................................................................5, 9, 10, 11, 12

IV. CONCLUSION .........................................................................................................................14

V. CERTIFICATE OF SERVICE .......................................................................................................15

VI. APPENDIX ..............................................................................................................................16

R.C. 2951.041 ............................................................................................................................... A-1

II. STATEMENT OF THE CASE AND FACTS

On April 21, 2009, the Appellant, Regina Niesen-Pennycuff, was charged by

information in the Warren County Court of Common Pleas with 12 counts of Deception

to Obtain Dangerous Drugs, R.C.1 2925.22(A), felonies of the fifth degree. On May 4,

2009, the trial court ordered the Appellant to be assessed to determine if she was

eligible for intervention in lieu of conviction; (ILC) pursuant to R.C. 2951.041. After the

assessment, the trial court, on May 28, 2009, found the Appellant to be eligible for ILC.

On May 28, 2009, the Appellant entered a guilty plea, as required by R.C. 2951.041, to

all 12 counts of Deception to Obtain Dangerous Drugs. On August 24, 2010, the trial

court found that the Appellant had successfully completed ILC and ordered her case

dismissed.

On September 23, 2010, the Appellant filed an application, pursuant to R.C.

2951.041(E) and R.C. 2953.52(A),2 with the trial court seeking to seal the records in this

case. The Appellant filed a supplemental memorandum on October 8, 2010. The

Appellant cited State v. Fortado (1996), 108 Ohio App. 3d 706, 671 N.E.2d 622, and State

v. Smith, Marion App. No. 9-04-05, 2004-Ohio-6668, and argued that, pursuant to those

cases, she could seek to have her records sealed pursuant to R.C. 2953.52(A) despite the

plain language of R.C. 2951.041(E) which grants trial courts the discretion to seal the

1 Ohio Revised Code.

2 The pertinent part of R.C. § 2953.52(A) allows a person, who is acquitted after a trialor who is the defendant named in a dismissed compliant, indictment, or information, toseek to have his records sealed any time after the finding of not guilty or the dismissal of

the complaint, indictment, or information.

1

records, after a defendant has successfully completed ILC, "in the manner provided in

sections 2953.31 to 2953.36 of the Revised Code."

The Warren County Court of Common Pleas denied the Appellant's application

to seal her records. In the trial court's entry, it stated:

The Court agrees with the prosecution that Ohio Revised Code§2951.041(E) expressly provides for sealing of the record uppn successfulcompletion of the intervention plan in the manner provided in §2953.31to §2953.36 O.R.C. The Court finds that the procedures contained in§2953.51 to §2953.61 O.R.C. do not apply even though a dismissal of thecharges has occurred. Those statutes deal with situations where theperson was either found not guilty or the charges were never brought to

bear.

In an ILC case, the defendant must enter a conditional guilty plea therebyacknowledging criminal responsibility for their conduct but allowing forthe dismissal of the charges if they successfully complete a treatmentplan, which addresses the underlying drug or alcohol induced behaviorwhich led to the conviction in the first place. Thus, the Court believesthat there is a legitimate Legislative distinction between those peoplewhose charges are dismissed because they were never guilty of anycrime, as opposed to someone like the defendant who was guilty butsuccessfully completed a treatment plan and deserves to have thebenefit of no criminal conviction being actually imposed on their record.

Entry Denying Application to Seal Record, T.d. 26, pp 1-2.

The Appellant appealed the trial court's decision to the Warren County Court of

Appeals, Twelfth Appellate District. The Twelfth District affirmed the trial court's

decision, holding that the unambiguous language of R.C. 2951.041(E) requires a trial

court to use the provisions found in R.C. 2953.31 to R.C. 2953.36 in resolving an

application to seal the records of a criminal defendant who has successfully completed

ILC. State v. Niesen-Pennycuff, Warren App. No. CA2010-11-112, 2011-Ohio-2704, ¶13.

However, the Twelfth District recognized that its holding in Niesen-Pennycuff was in

2

conflict with the holding of Ninth District of Court of Appeals in Fortado, so the Twelfth

District sua sponte certified a conflict to this Court. Id. at 1I28-¶30.

On September 21, 2011, this Court determined that a conflict existed and

ordered the parties in this present case to brief the following issue:

Must a trial court order the sealing of records in the manner provided inR.C. 2953.32, which requires a one-year waiting period for misdemeanorsand a three-year waiting period for felonies, or may the trial courtemploy R.C. 2953.52(A)(1) and determine that a defendant who hassuccessfully completed the intervention in lieu of conviction program iseligible to have their record sealed immediately upon successful

completion of the program?

Entry, 09/21/2011, T.d. 2011-1070.

3

III. ARGUMENT

A. APPELLEE'S RESPONSE TO APPELLANT'S PROPOSITION OF LAW.

The pertinent part of R.C. 2951.041(E), "the court may order the sealingof records related to the offense in question in the manner provided insections 2953.31 to 2953.36 of the Revised Code[,]" is plain andunambiguous, requiring a trial court, in resolving an application to sealthe records of a defendant who has successfully completed anintervention in lieu of conviction program, to proceed in the mannerprovided in R.C. 2953.32, which requires a one-year waiting period formisdemeanors and a three-year waiting period for felonies.

1. Standard of Review.

Since statutory interpretation and application are matters of law, this Court's

standard of review is de novo. State v. Stanovich, 173 Ohio App. 3d 304, 2007-Ohio-

4234,1112, 878 N.E.2d 641.

2. The plain and unambiguous language of R.C. 2951.041(E) requires atrial court to follow the procedures set forth in R.C. 2953.31 to R.C.2953.36 when resolving a request to seal records after the successful

completion of ILC.

Ohio Revised Code 2951.041(E) reads:

If the court grants an offender's request for intervention in lieu ofconviction and the court finds that the offender has successfullycompleted the intervention plan for the offender, including therequirement that the offender abstain from using drugs and alcohol for aperiod of at least one year from the date on which the court granted theorder of intervention in lieu of conviction and all other terms andconditions ordered by the court, the court shall dismiss the proceedingsagainst the offender. Successful completion of the intervention plan andperiod of abstinence under this section shall be without adjudication ofguilt and is not a criminal conviction for purposes of any disqualificationor disability imposed by law and upon conviction of a crime, and thecourt may order the sealing of records related to the offense in questionin the manner provided in sections 2953.31 to 2953.36 of the Revised

Code.

4

It has long been held in the State of Ohio that when the language of a statute is

plain and unambiguous and conveys a clear and definite meaning, a court does not need

to resort to the rules of statutory interpretation. Campbell v. City of Carlisle, 127 Ohio

St. 3d 275, 2010-Ohio-5707, ¶8, 939 N.E.2d 153. When a statute is plain and

unambiguous, the court must rely on what the General Assembly actually stated in the

statute. Stanovich, 2007-Ohio-4234 at ¶13.

The Appellant relies on Fortado, 108 Ohio App. 3d 706, and Smith, 2004-Ohio-

6668, to support her claim. However, the holdings of those cases are erroneous and

should not be followed by this Court.

In Fortado, 108 Ohio App. 3d 706, the defendant entered a guilty plea to two

charges of Drug Abuse and received ILC, which he successfully completed. Id. at 707.

The trial court dismissed the charges on May 18, 1995. Id. On June 16, 1995, the

defendant filed a motion, pursuant to R.C. 2953.52(A)(1), with the Summit County Court

of Common Pleas to seal his records. Id. The trial court granted the motion, and the

prosecution appealed. Id.

In Fortado, the entirety of the Ninth District's analysis and holding reads:

The trial court found that [the defendant] fell within R.C. 2953.52(A)(1)'spurview because it dismissed the indictments against him. We cannotsay that the court erred in that decision. The three year time limit appliesin a situation where a conviction occurs. By definition, the present casedoes not contain a conviction. Therefore, R.C. 2953.52(A)(1) would allow[the defendant] to file the motion at any time after the court's dismissal.

As previously mentioned, when the language of a statute is plain and

unambiguous and conveys a clear and definite meaning, a court does not need to resort

to the rules of statutory interpretation. Campbell, 2010-Ohio-5707 at ¶8. When a

5

statute is plain and unambiguous, the court must rely on what the General Assembly

actually stated in the statute. Stanovich, 2007-Ohio-4234 at 1113. However, if

interpretation is necessary, the court must interpret the statute's terms and phrases

according to their common and ordinary meaning or, if applicable, their technical

meaning. Id. When engaging in statutory interpretation, the court must determine the

General Assembly's intent in enacting the statute. Boley v. Goodyear Tire & Rubber Co.,

125 Ohio St. 3d 510, 2010-Ohio-2550, 1120, 929 N.E.2d 448. Furthermore, the court

must evaluate the statute as a whole and interpret it in such a way as to give effect to

every word and clause. Id. at 1¶21. The court should not treat any part of the statute as

superfluous and should avoid any interpretation that would render a provision

meaningless or inoperative. Id. The court must not restrict, constrict, qualify, narrow,

enlarge, or abridge the statute. Id. The court must interpret the statute, if possible, in

order to give effect to every word, phrase, sentence, and part. Id.

In Fortado, the Ninth District never determined whether or not R.C. 2951.041(E)

was ambiguous. The Ninth District never attempted to ascertain the General Assembly's

intent in enacting R.C. 2951.041(E). The Ninth District never evaluated R.C. 2951.041(E)

as a whole and never attempted to give effect to the statute's words, phrases,

sentences, or parts. To put it bluntly, the Ninth District in Fortado did not interpret R.C.

2951.041(E); it completely ignored the statute. With its decision in Fortado, the Ninth

District blatantly violated the rules of statutory interpretation. In Fortado, the Ninth

District did not, in reality, engage in statutory interpretation. Instead, it engaged in

improper legislation from the bench, which is not the function of the Ninth District or

6

any other court in the State of Ohio. See Campbell, 2010-Ohio-5707 at 118. As such, the

Ninth District's decision in Fortado cannot withstand legal scrutiny, and this Court

should not follow the Ninth District's erroneous decision.

The Appellant also relies on Smith, 2004-Ohio-6668. In Smith, the defendant

requested ILC regarding eight counts of Theft of Drugs. Id. at ¶5. The Marion County

Court of Common Pleas granted the request. Id. On January 10, 2002, the defendant

successfully completed ILC, and the trial court dismissed the eight counts of Theft of

Drugs pursuant to R.C. 2951.041. Id. at ¶6. On October 1, 2003, the defendant filed,

pursuant to R.C. 2953.32, a motion to seal his records regarding three misdemeanor

convictions for Possession of Drugs. Id. After a hearing, the trial court granted the

defendant's motion. Id. at 117. The trial court sealed the records regarding the

Possession of Drugs convictions, and it also sealed the records of the eight counts of

Theft of Drugs. The prosecution appealed to the Marion County Court of Appeals, Third

Appellate District. ld. at ¶8.

On appeal, the prosecution argued that the trial court erred by sealing the

defendant's record because the defendant was not a first offender since he had been

convicted of three separate counts of Possession of Drugs that he had committed in

three different years. Id. The Third District agreed with the prosecution that the

defendant was not a first offender. Id. at 1117.

The prosecution also argued that the trial court erred in sealing the records

regarding the eight counts of Theft of Drugs because the defendant's motion only

pertained to the defendant's convictions for Possession of Drugs. Id. at 1I18.

7

The Third District rejected the prosecution's argument. The Third District noted

that, pursuant to R.C. 2951.041(E), a trial court has the authority to seal the record of an

offender who has successfully completed ILC. Id. at 1122. The Third District held:

Based on the language of R.C. 2951.041(E) that the court may order therecords sealed in the "manner provided" by the expungement statutes,rather than language such as "pursua.nt to the procedure" of the statutes,we find that the legislature intended the trial court to have the authorityto order the records sealed even without an application by the offender.

Id.

As can be seen, the Third District interpreted the last clause of R.C. 2951.041(E)

so that the verb "may" applied to the phrase, "in the manner provided in sections

2953.31 to 2953.36 of the Revised Code." By doing so, the Third District held that trial

courts have discretion to decide which procedures to use when deciding to seal the

records of an offender who has successfully completed ILC. However, with this

interpretation, the Third District rendered the phrase, "in the manner provided in

sections 2953.31 to 2953.36 of the Revised Code[,)" both superfluous and meaningless.

However, courts are prohibited from interpreting a statute in such a way as to render

any of its words, sentences, or phrases superfluous or meaningless. See Boley, 2010-

Ohio-2550 at 1121. With its interpretation in Smith, the Third District violated the rules

of statutory interpretation.

In her brief, the Appellant reiterates the Third District's erroneous interpretation

of R.C. 2951.041(E), arguing that the verb, "may" applies to the phrase, "in the manner

provided in sections 2953.31 to 2953.36 of the Revised Code[,]" giving trial courts the

option to use or ignore R.C. 2953.31 to R.C. 2953.36. According to the Appellant, this

8

interpretation would conform to the General Assembly's underlying purpose for ILC and

would not render the phrase, "in the manner provided in sections 2953.31 to 2953.36 of

the Revised Code[,]" either superfluous or meaningless. The Appellant, however, is

gravely mistaken.

The following example highlights the flaws in the Appellant's interpretation.

Consider, for the sake of argument, that a court of common pleas has two divisions. If

the Appellant's interpretation of R.C. 2951.041(E) is correct, then division one could

exercise its discretion, ignore the phrase, "in the manner provided in sections 2953.31

to 2953.36 of the Revised Code," and require ILC defendants seeking to seal their

records to comply with R.C. 2953.52. Given the Appellant's interpretation, this would

be a valid exercise of division one's discretion. However, division two could exercise its

discretion, recognize the phrase, "in the manner provided in sections 2953.31 to

2953.36 of the Revised Code[,]" and require. ILC defendant seeking to seal their records

to comply with the time periods set forth in R.C. 2953.32. This would be an equally valid

exercise of discretion under the Appellant's interpretation of R.C. 2951.041(E). So the

Appellant's interpretation would lead to two different applications of the same statute.

Moreover, neither division would be committed to its respective decision to proceed or

not to proceed in the manner provided by R.C. 2953.31 to R.C. 2953.36. Either division

could exercise its discretion at any time and change its respective position. Not only

does the Appellant's interpretation render the last clause of R.C. 2951.041(E)

superfluous, but it also leads to an absurd result. As can be seen, the Third District's

decision in Smith is erroneous, and this Court should not follow it.

9

Turning to the Twelfth District's opinion in this case, the Twelfth District

disagreed with the Ninth District's application of R.C. 2953.52 in Fortado. Niesen-

Pennycuff, 2011-Ohio-2704 at ¶11. The Twelfth District applied the plain meaning of

the phrase, "the court may order the sealing of records related to the offense in

question in the manner provided in sections 2953.31 to 2953.36 of the Revised Code[,]"

to this case and determined that the unambiguous language of that phrase requires a

trial court to use the provisions set forth in R.C. 2953.31 to R.C. 2953.36 in sealing the

records of a defendant who has successfully completed ILC. Id. at 1113. The Twelfth

District concluded that if the General Assembly intended to allow an ILC defendant to

seal his or her records immediately upon the successful completion of ILC and dismissal

of the underlying charges, then the General Assembly would have said so or would have

referred to R.C. 2953.52(A)(1) in the last sentence of R.C. 2951.041(E). Id.

The Twelfth District went further and interpreted the phrase, "the court may

order the sealing of records related to the offense in question in the manner provided in

sections 2953.31 to 2953.36 of the Revised Code." After setting forth the rules of

statutory interpretation, the Twelfth District determined that the General Assembly's

use of the verb "may" in R.C. 2951.041(E) indicated that a trial court may order the

sealing of records. Id. at 1117. In other words, a trial court has the discretion to either

permit or deny the sealing of records. Id. "However, the 'may' does not permit the

same trial court to forgo the provisions in R.C. 2953.31 to 2953.36 and elect, instead, to

apply R.C. 2953.52(A)(1)." Id.

10

The Twelfth District determined that General Assembly specifically stated that if

a trial court intended to seal the record, then

it was to proceed "in the manner provided in sections 2953.31 to 2953.36of the Revised Code." These sections . . . set forth the procedure forsealing the record. However, no terms within these sections permit theimmediate sealing of records upon dismissal of charges. R.C. 2953.31defines applicable terms, including first offender. R.C. 2953.32 ... setsforth general provisions for sealing the record of a first time offender,and requires a one-year hold for misdemeanors, and a three-year waitingperiod for felonies. R.C. 2953.33 describes the restoration of rights uponsealing of a record, while R.C. 2953.34 states that other remedies are notprecluded once sealing occurs, such as seeking appeal of the trial court'sdecision. R.C. 2953.36 lists the convictions for which sealing the record

are precluded.

Id.at1I18.

The Twelfth District found R.C. 2953.36 particularly useful to its analysis.

Unlike R.C. 2953.52(A)(1), which grants unconditional sealing of therecord, R.C. 2953.36 specifically lists several crimes for which sealing therecord is prohibited. We therefore conclude that the legislaturespecifically drafted R.C. 2951.041(E) to direct a court to seal the record inonly certain circumstances rather than in every instance in which adefendant is named in a dismissed complaint, indictment, or information.In reviewing the intervention-in-lieu-of-conviction statute in its entirety,we find that the General Assembly took caution to differentiate betweensealing the record specific to the manner prescribed in R.C. 2953.31 to2953.36 and the immediate and unconditional sealing under R.C.

2953.52(A)(1).

Id.at1119.

The Twelfth District reiterated that if the General Assembly wanted R.C.

2953.52(A)(1) to apply to ILC cases, then it could have referred to that statute or could

have stated that a trial court could seal the record according to any, or all, of the

statutes that deal with the sealing of records. !d. at 1120. But the General Assembly

11

specifically ordered trial courts to proceed "in the manner provided in sections 2953.31

to 2953.36 of the Revised Code." Id.

The Twelfth District went further and reasoned that if it were to follow the

Fortado court's holding, then it would render that last phrase of R.C. 2951.041(E)

superfluous. Id. at 1121. The Twelfth District recognized that under the principles of ILC,

a trial court will dismiss the criminal charges against a defendant if the defendant

successfully completes the program. Id. But if the General Assembly had intended to

allow the immediate and unconditional sealing of records after a defendant had

successfully completed ILC, then it would not have ordered trial courts to proceed in the

manner set forth in "sections 2953.31 to 2953.36" since a trial court would

automatically use R.C. 2953.52(A)(1), which allows any defendant named in a dismissed

complaint to seal the record at the time the compliant is dismissed. Id.

The Twelfth District also determined that there is a statutory difference between

a defendant seeking ILC and a defendant who is acquitted or whose case is dismissed.

Id. at 1I23. A defendant who was acquitted or whose case was dismissed would have

maintained his or her innocence throughout the proceeding. Id. But a defendant who

has been granted the legislative grace of ILC would have pled guilty since a defendant

must plead guilty to participate in an ILC program. Id.

The Twelfth District noted that unlike a defendant who has been acquitted or

whose charges have been dismissed, a defendant participating in ILC has acknowledged

criminal responsibility for his or her criminal actions by pleading guilty, hoping to

exchange treatment for punishment. Id, at ¶24. As the Twelfth District observed, ILC

12

defendants "have the pending charges dismissed because they successfully completed a

treatment program, not because they were not guilty of the charges against them." Id.

The Twelfth District reasoned that the General Assembly codified this distinction when it

directed trial courts to use the provisions in R.C. 2953.31 to R.C. 2953.36. Id. at 1125.

Thus, the Twelfth District concluded that its holding, which restricts the sealing of

records in ILC cases to the manner provided R.C. 2953.31 to R.C. 2953.36, comports with

the plain language of R.C. 2951.041(E) and comports with the General Assembly's

purpose behind the ILC statutes. Id.

Unlike the decision in Fortado in which the Ninth District abandoned the

venerable judicial practice of statutory interpretation in favor of the prohibited practice

of legislating from the bench and unlike the decision in Smith in which the Third District

erroneously interpreted R.C. 2951.041(E), rendering that statute's final clause

superfluous, the Twelfth District's holding, which restricts the sealing of records in ILC

cases to the manner provided R.C. 2953.31 to R.C. 2953.36, is well-reasoned, logical,

and comports with the rules of statutory interpretation. Consequently, this Court

should adopt the reasoning in the Twelfth District's decision in this case and hold that

the plain and unambiguous language of R.C. 2951.041(E) requires a trial court, when

considering the sealing of records in a case where the defendant has successfully

completed ILC, to proceed in the manner provided in R.C. 2953.32, which requires a

one-year waiting period for misdemeanors and a three-year waiting period for felonies.

13

IV. CONCLUSION

The crux of this appeal is the final clause of R.C. 2951.041(E), "the court may

order the sealing of records related to the offense in question in the manner provided in

sections 2953.31 to 2953.36 of the Revised Code." This clause is not ambiguous. It

gives a trial court the discretion to either grant or deny an application to seal the

records of a defendant who has successfully completed ILC. However, that statute also

mandates that a trial court uses the provisions set forth in R.C. 2953.31 to R.C. 2953.36,

meaning, in resolving such applications, the trial court must proceed in the manner

provided in R.C. 2953.32. Consequently, the State respectfully requests this Court to

reject the Appellant's proposition of law, adopt the decision of the Twelfth District in

this case, and affirm the decision of the Warren County Court of Common Pleas in which

it denied the Appellant's application to seal her records.

Respectfully submitted,

ILI-̂-MICHAEL GREER #0084352Assistant Warren County Prosecutor(COUNSEL OF RECORD)Warren County Prosecutor's Office500 Justice DriveLebanon, Ohio 45036(513) 695-1327(513) 596-2962-Fax

COUNSEL FOR STATE OF OHIO

14

V. CERTIFICATE OF SERVICE

I, hereby certify that a copy of the foregoing was mailed by ordinary U.S. mail to

Appellant's counsel, Mr. Nicholas D. Graman, Rittgers & Rittgers, 12 East Warren Street,

Lebanon, Ohio 45036 on this 11 day of November, 2011.

pbl:j AMICHAEL GREER, #0084352Assistant Prosecuting Attorney

15

VI. APPENDIX

16

Page 1

^ LexisNexis"Page's Ohio Revised Code Annotated:

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Current through Legislation passed by the 129th Ohio General Assemblyand filed with the Secretary of State through file 49*** Annotations current through July 22, 2011 ***

The provisions of 2011 14B 194 are not yet in effect as they are subj ectto a referendum upon verification of petition signatures

TITLE 29. CRIMES -- PROCEDURECHAPTER 2951. PROBATION

Go to the Ohio Code Archive Directory

ORCAnn. 2951.041 (2011)

§ 2951.041. Intervention in lieu of conviction

(A) (1) If an offender is charged with a criminal offense, including but not limited to a violation of section 2913.02,

2913.03, 2913.11, 2913.21, 2913.31, or 2919.21 of the Revised Code, and the court has reason to believe that drug or

alcohol usage by the offender was a factor leading to the criminal offense with which the offender is charged or that, atthe time of committing that offense, the offender had a mental illness or was a person with intellectual disability andthat the mental illness or status as a person with intellectual disability was a factor leading to the offender's criminalbehavior, the court may accept, prior to the entry of a guilty plea, the offender's request for intervention in lieu of con-viction. The request shall include a statement from the offender as to whether the offender is alleging that drug or alco-hol usage by the offender was a factor leading to the criminal offense with which the offender is charged or is allegingthat, at the time of committing that offense, the offender had a mental illness or was a person with intellectual disabilityand that the mental illness or status as a person with intellectual disability was a factor leading to the criminal offensewith which the offender is charged. The request also shall include a waiver of the defendant's right to a speedy trial, thepreliminary hearing, the time period within which the grand jury may consider an indictment against the offender, andarraignment, unless the hearing, indictment, or arraignment has already occurred. The court may reject an offender'srequest without a hearing. If the court elects to consider an offender's request, the court shall conduct a hearing to de-termine whether the offender is eligible under this section for intervention in lieu of conviction and shall stay all crimi-nal proceedings pending the outcome of the hearing. If the court schedules a hearing, the court shall order an assessmentof the offender for the purpose of determining the offender's eligibility for intervention in lieu of conviction and rec-

onnnending an appropriate intervention plan.

If the offender alleges that drug or alcohol usage by the offender was a factor leading to the criminal offense withwhich the offender is charged, the court may order that the offender be assessed by a program certified pursuant to sec-

tion 3793.06 of the Revised Code or a properly credentialed professional for the purpose of determining the offender'seligibility for intervention in lieu of conviction and recommending an appropriate intervention plan. The program or theproperly credentialed professional shall provide a written assessment of the offender to the court.

(2) The victim notification provisions of division (C) of section 2930.08 of the Revised Code apply in relation to

any hearing held under division (A)(1) of this section.

(B) An offender is eligible for intervention in lieu of conviction if the court finds all of the following:

Page 2

ORC Ann. 2951.041

(1) The offender previously has not been convicted of or pleaded guilty to a felony offense of violence or previ-ously has been convicted of or pleaded guilty to any felony that is not an offense of violence and the prosecuting attor-ney recommends that the offender be found eligible for participation in intervention in lieu of treatment under this sec-tion, previously has not been through intervention in lieu of conviction under this section or any similar regimen, and ischarged with a felony for which the court, upon conviction, would impose sentence under division (B)(2)(b) of section

2929.13 of the Revised Code or with a misdemeanor.

(2) The offense is not a felony of the first, second, or third degree, is not an offense of violence, is not a violation

of division (A)(1) or (2) of section 2903.06 of the Revised Code, is not a violation of division (A)(1) of section 2903.08

of the Revised Code, is not a violation of division (A) of section 4511.19 of the Revised Code or a municipal ordinance

that is substantially similar to that division, and is not an offense for which a sentencing court is required to impose amandatory prison term, a mandatory term of local incarceration, or a mandatory term of imprisonment in a j ail.

(3) The offender is not charged with a violation of section 2925.02, 2925.04, or 2925.06 of the Revised Code, is

not charged with a violation of section 2925.03 of the Revised Code that is a felony of the first, second, third, or fourth

degree, and is not charged with a violation of section 2925.11 of the Revised Code that is a felony of the first, second, or

third degree.(4) If an offender alleges that drug or alcohol usage by the offender was a factor leading to the criminal offense

with which the offender is charged, the court has ordered that the offender be assessed by a program certified pursuant

to section 3793.06 of the Revised Code or a properly credentialed professional for the purpose of determining the of-fender's eligibility for intervention in lieu of conviction and recommending an appropriate intervention plan, the of-fender has been assessed by a program of that nature or a properly credentialed professional in accordance with thecourt's order, and the program or properly credentialed professional has filed the written assessment of the offender with

the court.(5) If an offender alleges that, at the time of committing the criminal offense with which the offender is charged,

the offender had a mental illness or was a person with intellectual disability and that the mental illness or status as aperson with intellectual disability was a factor leading to that.offense, the offender has been assessed by a psychiatrist,psychologist, independent social worker, or professional clinical counselor for the purpose of determining the offender'seligibility for intervention in lieu of conviction and recommending an appropriate intervention plan.

(6) The offender's drug usage, alcohol usage, mental illness, or intellectual disability, whichever is applicable,was a factor leading to the criminal offense with which the offender is charged, intervention in lieu of conviction wouldnot demean the seriousness of the offense, and intervention would substantially reduce the likelihood of any future

criminal activity.(7) The alleged victim of the offense was not sixty-five years of age or older, permanently and totally disabled,

under thirteen years of age, or a peace officer engaged in the officer's official duties at the time of the alleged offense.

(8) If the offender is charged with a violation of section 2925.24 of the Revised Code, the alleged violation did not

result in physical harm to any person, and the offender previously has not been treated for drug abuse.

(9) The offender is willing to comply with all terms and conditions imposed by the court pursuant to division (D)

of this section.(C) At the conclusion of a hearing held pursuant to division (A) of this section, the court shall enter its determina-

tion as to whether the offender is eligible for intervention in lieu of conviction and as to whether to grant the offender'srequest. If the court fmds under division (B) of this section that the offender is eligible for intervention in lieu of convic-tion and grants the offender's request, the court shall accept the offender's plea of guilty and waiver of the defendant'sright to a speedy trial, the preliminary hearing, the time period within which the grandjury may consider an indictmentagainst the offender, and arraignment, unless the hearing, indictment, or arraignment has already occurred. In addition,the court then may stay all criminal proceedings and order the offender to comply with all terms and conditions imposedby the court pursuant to division (D) of this section. If the court fmds that the offender is not eligible or does not grantthe offender's request, the criminal proceedings against the offender shall proceed as if the offender's request for inter-

vention in lieu of conviction had not been made.

(D) If the court grants an offender's request for intervention in lieu of conviction, the court shall place the offenderunder the general control and supervision of the county probation department, the adult parole authority, or another ap-propriate local probation or court services agency, if one exists, as if the offender was subject to a connnunity control

Page 3

ORC Ann. 2951.041

sanction imposed under section 2929.15, 2929.18, or 2929.25 of the Revised Code. The court shall establish an interven-

tion plan for the offender. The terms and conditions of the intervention plan shall require the offender, for at least oneyear from the date on which the court grants the order of intervention in lieu of conviction, to abstain from the use ofillegal drugs and alcohol, to participate in treatment and recovery support services, and to submit to regular random test-ing for drug and alcohol use and may include any other treatment terms and conditions, or terms and conditions similarto community control sanctions, which may include community service or restitution, that are ordered by the court.

(E) If the court grants an offender's request for intervention in lieu of conviction and the court finds that the of-fender has successfully completed the intervention plan for the offender, including the requirement that the offenderabstain from using illegal drugs and alcohol for a period of at least one year from the date on which the court grantedthe order of intervention in lieu of conviction, the requirement that the offender participate in treatment and recoverysupport services, and all other terms and conditions ordered by the court, the court shall dismiss the proceedings againstthe offender. Successful completion of the intervention plan and period of abstinence under this section shall be withoutadjudication of guilt and is not a criminal conviction for purposes of any disqualification or disability imposed by lawand upon conviction of a crime, and the court may order the sealing of records related to the offense in question in the

manner provided in sections 2953.31 to 2953.36 of the Revised Code.

(F) If the court grants an offender's request for intervention in lieu of conviction and the offender fails to complywith any term or condition imposed as part of the intervention plan for the offender, the supervising authority for theoffender promptly shall advise the court of this failure, and the court shall hold a hearing to determine whether the of-fender failed to comply with any term or condition imposed as part of the plan. If the court determines that the offenderhas failed to comply with any of those terms and conditions, it shall enter a fmding of guilty and shall impose an appro-priate sanction under Chapter 2929. of the Revised Code. If the court sentences the offender to a prison term, the court,after consulting with the department of rehabilitation and correction regarding the availability of services, may ordercontinued court-supervised activity and treatment of the offender during the prison term and, upon consideration of re-ports received from the department conceming the offender's progress in the program of activity and treatment, may

consider judicial release under section 2929.20 of the Revised Code.

(G) As used in this section:

(1) "Community control sanction" has the same meaning as in section 2929.01 of the Revised Code.

(2) "Intervention in lieu of conviction" means any court-supervised activity that coniplies with this section.

(3) "Peace officer" has the same meaning as in section 2935.01 of the Revised Code.

(4) "Mental ilhiess" and "psychiatrist" have the same meanings as in section 5122.01 of the Revised Code.

(5) "Person with intellectual disability" means a person having significantly subaverage general intellectual func-tioning existing concurrently with deficiencies in adaptive behavior, manifested during the developmental period.

(6) "Psychologist" has the same meaning as in section 4732.01 of the Revised Code.

(H) Whenever the term "mentally retarded person" is used in any statute, rule, contract, grant, or other document,the reference shall be deemed to include a "person with intellectual disability," as defined in this section.

HISTORY:148 v H 202 (Eff 2-9-2000); 148 v S 107 (Eff 3-23-2000); 149 v H 327. Eff 7-8-2002; 149 v H 490, § 1, eff. 1-1-

04; 152 v H 130, § 1, eff. 4-7-09; 2011 HB 86, § 1, eff. Sept. 30, 2011.

NOTES:

Section Notes

The effective date is set by section 4 of H.B. 490.

Analogous to fo-rmer RC § 2951.04.1 (136 v H 300; 138 v H 900; 143 v H 317; 143 v S 258; 145 v H 385; 146 v S

2; 146 v S 269), repealed 148 v S 107, § 2, eff 3-23-2000.

EFFECT OF AMENDMENTS

ORC Ann. 2951.041

Page 4

The 2011 amendment rewrote the section.

152 v H 130, effective April 7, 2009, in (D), inserted "to participate in treatment and recovery support services" and"which may include community service or restitution"; and, in (F), added the last sentence.

Related Statutes & Rules

Cross-References to Related Statutes

Confidentiality of patient's records; when disclosure allowed, RC § 3793.13.

Offense of violence defined, RC § 2901.01.

Pre-trial diversion programs for certain offenders, RC § 2935.36.

Sentencing persons convicted of drug abuse offenses, RC § 3719.70.

Ohio Rules

Presentence investigation, CrimR 32.2.

Comparative Legislation

TREATMENT OF DRUG DEPENDENT PERSON: CA--Cal Pen Code § 1203.03

FL--Fla. Stat. § 921.187

IL--730Il1. Comp. Stat. §§ 5/3-8-5, 5/3-13-2

IN--Bums Ind. Code Ann. § 12-23-7-1 et seq

NY--NY CLS Penal ,¢§ 60.08, 60.09

PA--71 P.S. § 1690.106

Practice Manuals & Treatises

Anderson's Ohio Criminal Practice and Procedure § 3 7.200 Intervention in Lieu of Conviction (R. C. § 2951.041)

Anderson's Ohio Criminal Practice and Procedure § 37.201 Criteria for Eligibility

Anderson's Ohio Criminal Practice and Procedure § 37.202 Criteria for Ineligibility

Anderson's Ohio Criminal Practice and Procedure § 37.204 Completion or Violation of Intervention Plan

Practice Forms

Request for Treatment in Lieu of Conviction, 16 Ohio Forms of Pleading and Practice Form 32:33A

ALR

Addiction to drugs or related mental state as defense to criminal charge. 73 ALR3d 16.

Effect of voluntary drug intoxication upon criminal responsibility. 73 ALR3d 98.

Case Notes & OAGsANALYSIS Constitutionality Alcohol Appeal Compliance with intervention plan Discretion of court Diversion pro-gram Due process Eligibility Forfeiture of property Intervention in lieu of conviction Medications Nonsupport of de-pendents Orders Right to counsel Sealing of record Sentencing Violation of probation Waiver

CONSTITUTIONALITY.

ORC Ann. 2951.041

Page 5

Excluding situations such as an imbalance of dopamine from the benefits of RC § 2951.041 does not violate equal

protection: State v. Turner, 156 Ohio App. 3d 177, 805 N.E.2d 124, 2004 Ohio App. LEXIS 423, 2004 Ohio 464, (2004).

ALCOHOL.

Alcohol is not a drug for purposes of RC § 2951.04.1: State v. Radich, 84 Ohio App. 3d 429, 616 N.E.2d 1189,

1992 Ohio App. LEXIS 6365 (1992).

Alcohol is not to be considered a"drug" for purposes of RC § 2951.04.1 (treatment in lieu of conviction): State v.

Ramey, 39 Ohio App. 3d 169, 530 N.E.2d 971 (1988).

APPEAL.

Eligibility determinations under RC § 2951.041 are matters of law and, therefore, are subject to de novo review on

appeal: State v. Stanovich, 173 Ohio App. 3d 304, 878 N.E.2d 641, 2007 Ohio App. LEXIS 3893, 2007 Ohio 4234,

(2007).

COMPLIANCE WITH INTERVENTION PLAN.

Under the new version of RC § 2951.041 enacted in 2000, failure to comply with the intervention plan does not re-quire the court to send the offender to prison. The amendment of the prior version of the statute in Sub. H.B. No. 202did not prevent the new version from going into effect: State v. McLaughlin, 157 Ohio App. 3d 1, 808 N.E.2d 893, 2004

Ohio App. LEXIS 1579, 2004 Ohio 1780, (2004).

DISCRETION OF COURT.

Denial of defendant's request for intervention in lieu of conviction was at worst, harmless error, because Ohio Rev.

Code Ann. § 2951.041(A) created a privilege that the trial court possessed considerable discretion to deny. State v.

Nealeigh, 2011 Ohio App. LEXIS 1231, 2011 Ohio 1416, (Mar. 25, 2011).

Abuse of discretion in denying a motion under RC § 2951.041 without a hearing is harmless error that an appellate

court is charged by CrimR 52(A) to disregard because a defendant could have suffered no prejudice to a legal right en-

forced and protected by law as a result: State v. Rice, 180 Ohio App. 3d 599, 906 N.E.2d 506, 2009 Ohio App. LEXIS

129, 2009 Ohio 162, (2009).Trial court abused by discretion by denying intervention where the defendant had successfully progressed through

an intervention program in another county concerning offenses that were part of the same course of conduct. Prior mis-demeanor convictions alone do not bar intervention: State v. Drager, 167 Ohio App. 3d 47, 853 N.E.2d 1180, 2006 Ohio

App. LEXIS 2154, 2006 Ohio 2329, (2006).

The court is not required to advise a defendant of his eligibility for probation under RC §§ 2951.04 or 2951.04.1where the defendant is aware of those provisions and has already requested consideration under them. Denial of proba-tion is not an abuse of discretion where the defendant plotted the robbery of a senior citizen: State v. Boyd, 95 Ohio App.

3d 679, 643 N.E.2d 581, 1994 Ohio App. LEXIS 4083 (1994).

DIVERSION PROGRAM.

Defendant's previous participation in a county prosecutor's diversion program did not render her ineligible for in-

tervention in lieu of conviction. State v. Leisten, 166 Ohio App. 3d 805, 853 N.E.2d 673, 2006 Ohio App. LEXIS 2215,

2006 Ohio 2362, (2006).

DUE PROCESS.

Defendant's due process rights were not violated under Ohio Const. art. I, § 10 when the trial court failed to hold apreliminary probation violation hearing, as defendant had filed a motion for intervention in lieu of conviction, pursuant

to RC § 2951.041, and defendant never requested such a hearing; accordingly, such hearing was waived. State v. In-

gram, 2005 Ohio App. LEXIS 1918, 2005 Ohio 1967, (2005).

ELIGIBILITY.

ORC Ann. 2951.041

Page 6

In a felony nonsupport case under Ohio Rev. Code Ann. § 2919.21(B), a trial court erred and abused its discretionby determining that defendant was statutorily ineligible for intervention in lieu of conviction; the victim in a nonsupportcase was not the dependent child who was the object of the support order, but it was the custodial parent instead. State v.Pence, 2010 Ohio App. LEXIS 4963, 2010 Ohio 5901, (Dec. 3,2010).

Person holding a "position of trust" for the purpose of RC,¢ 2929.13(B)(1)(d) is not limited solely to public officialsand public servants. A private individual holds a "position of trust" within the meaning of RC,¢ 2929.13(B)(1)(d) if heor she occupies a special relationship of trust and confidence equivalent to a fiduciary relationship. A nurse, by virtue ofhis or her employment in a hospital, does not occupy a fiduciary relationship with his or her employer. A nurse whosteals drugs from his or her employer-hospital does not hold a "position of trust" within the meaning of RC §2929.13(B)(1)(d) and is not categorically ineligible for intervention in lieu of conviction: State v. Massien, 125 Ohio St.3d 204, 926N.E.2d 1282, 2010 Ohio LEXIS 1043, 2010 Ohio 1864, (2010).

Defendant was eligible for intervention in lieu of conviction even though she worked as a nurse at a hospital. Shedid not occupy a position of trust as that term is used in RC § 2929.13(B)(1)(d): State v. Knepper, 184 Ohio App. 3d416, 921 NE.2d 284, 2009 Ohio App. LEXIS 4361, 2009 Ohio 5159, (2009), affirmed by 126 Ohio St. 3d 54, 2010 Ohio2695, 930 tV.E.2d 311, 2010 Ohio LEXIS 1397 (2010).

Where the victim of identity fraud was deceased, the offender was, pursuant to RC § 2951.041(B)(7), ineligible for

intervention in lieu of conviction: State v. Ray, 181 Ohio App. 3d 590, 910 N.E.2d 34, 2009 Ohio App. LEXIS 1189,2009 Ohio 1395, (2009).

Offender's ineligibility on one count of an indictment does not preclude eligibility on another count: State v. Stano-vich, 173 Ohio App. 3d 304, 878 N.E.2d 641, 2007 Ohio App. LEXIS 3893, 2007 Ohio 4234, (2007).

Trial court erred in fmding that defendant's ineligibility for intervention in lieu of conviction under RC § 2951.041on the assault counts of the indictment automatically precluded his eligibility on the aggravated possession of drugscount. Section 2951.041 contains no express prohibition against granting intervention to an offender who is eligible onone count of the indictment but not on another count; rather, § 2951.041 plainly references "the offense" in the singularthroughout, indicating that each count constituting a different crime on the indictment has to be analyzed independentlyfor purposes of determining eligibility for intervention. State v. Stanovich, 173 Ohio App. 3d 304, 878 N.E.2d 641, 2007Ohio App. LEXIS 3893, 2007 Ohio 4234, (2007).

Since defendant's theft of narcotics in the course of her employment as a nurse in the hospital was a crime whichher professional position facilitated and since the hospital's trust in her was breached, defendant was ineligible for sen-tencing under RC § 2929.13(B)(2)(b). The trial court erred in ordering intervention in lieu of conviction under RC §2951.041(B). State v. France, 2006 Ohio App. LEXIS 1077, 2006 Ohio 1204, (2006).

FORFEITURE OF PROPERTY.

Court cannot order forfeiture of property allegedly used in the commission of a drug offense when the court grantsintervention in lieu of conviction on the same offense and the defendant successfully completes the program: State v.

Markusic, 136 Ohio Misc. 2d 31, 847 N.E.2d 73, 2003 Ohio Misc. LEXIS 81, 2003 Ohio 7372, (2003).

[NTERVENTION IN LIEU OF CONVICTION.

There was no error regarding the Intervention in Lieu of Conviction (ILC) because the trial court's termination en-try reflected a conviction of domestic violence and a six-month sentence; defendant never filed a motion for ILC; de-fendant was ineligible for ILC, having previously been convicted of a felony and his current offense being one of vio-lence; and defendant appeared for final disposition October 18, as previously ordered, and the trial court referred to thepresentence investigation report, accorded defendant and his counsel an opportunity for allocation, and imposed sen-tence. No mention was made of ILC, and among the journal entries and original papers, there was no grant of ILC. State

v. Hill, 2006 Ohio App. LEXIS 1660, 2006 Ohio 1811, (Apr. 7, 2006).

Denial of defendant's motion for intervention in lieu of conviction under RC § 2951.041 was proper where the trialcourt considered the report of a doctor who opined that alcohol was not a major contributing factor in sexual offenses,and found no indication of substance abuse or usage in defendant's internet conversation with a detective who was pos-ing as a 14-year-old girl. State v. Lindberg, 2006 Ohio App. LEXIS 1324, 2006 Ohio 1429, (Mar. 24, 2006).

ORC Ann. 2951.041Page 7

Trial court did not abuse its discretion in overruling defendant's motion for intervention in lieu of conviction pursu-ant to RC,¢ 2951.041(D), as the trial court based its decision on relevant factors and evidence, including defendant'slack of sincerity and motivation for treatment and the determination that defendant was not a good candidate for such aprogram despite her statutory eligibility; she had missed sessions for a treatment program and she had appeared at othersessions while under the influence of alcohol. State v. Sizemore, 2006 Ohio App. LEXIS 934, 2006 Ohio 996, (Mar. 3,

2006).Trial court properly affirmed the state workers' compensation bureau's denial of the physician's recertification with

the state workers' compensation bureau's health partnership program allowing the physician to continue to see workers'compensation claimants as the bureau did not retroactively deny such certification based on an amended administrativeregulation, rather, deni,al was based on the trial court granting the physician intervention in lieu of conviction for hisprescription-dependency addiction by way of a trial court judgment entry that occurred after the amendment went intoeffect that prohibited certification for any provider who has participated in an intervention in lieu of conviction pro-gram. Scheidler v. Ohio Bureau of Workers' Comp., 2005 Ohio App. LEXIS 67, 2005 Ohio 105, (2005).

Appellate court's reasoning was sound and it did not en• in reversing defendant's sentence on grounds that the trialcourt had failed to apply the new "intervention in lieu of conviction" version of RC § 2951.041; it therefore denied theState's application for reconsideration. State v. McLaughlin, 2004 Ohio App. LEXIS 2223, 2004 Ohio 2525, (2004).

Trial court erred in sentencing defendant to prison, under the mistaken belief that it had no other option, after de-fendant failed to complete her drug treatment program, because the legislature had adopted an amended version of thestatute, if only for a brief period, that did not require the court to sentence defendant to pri' son. State v. McLaughlin, 157Ohio App. 3d 1, 808 N.E.2d 893, 2004 Ohio App. LEXIS 1579, 2004 Ohio 1780, (2004).

Where defendant nurse was convicted of theft of drugs pursuant to RC § 2913.02 and illegal processing of drugdocuments in violation of RC § 2925.23, the trial court did not err in finding her ineligible for intervention in lieu ofconviction pursuant to RC § 2951. 041(B); she had failed two attempts at treatment, a factor under RC § 2951. 041(B) (9),and given her position of trust and access to drugs, intervention would have demeaned the seriousness of the offense.State v. Wiley, 2003 Ohio App. LEXIS 6120, 2003 Ohio 6835, (2003).

Trial court did not err in revoking defendant's intervention and imposing a sentence on her pursuant to her guiltyplea, as the terms and conditions of any intervention plan required her to abstain from the illegal use of drugs, which shedid not do. State v. Oliver, 2003 Ohio App. LEXIS 5069, 2003 Ohio 5710, (Oct. 24, 2003).

Sentence entered on defendant's plea of guilty for failing to comply with the terms of the intervention program she

had sought pursuant to RC § 2951.041(F) was proper despite the lack of an intervention program because the failure tocomplete an assessment of her condition was due to her misconduct in not appearing for a fourth hearing on her motionfor intervention; to hold otherwise would allow her to benefit from her misconduct. State v. Oliver, 2003 Ohio App.

LEXIS 5069, 2003 Ohio 5710, (Oct. 24, 2003).

A court may not arbitrarily deny ILC simply because a DUI was involved, even though it was dismissed: State v.

Schmidt, 149 Ohio App. 3d 89, 776 N.E.2d 113, 2002 Ohio App. LEXIS 3984, 2002 Ohio 3923, (2002).

A court must impose sentence when a defendant fails to complete intervention in lieu of conviction: State v. Abi-

Aazar, 149 Ohio App. 3d 359, 777 N.E.2d 327, 2002 Ohio App. LEXIS 5067, 2002 Ohio 5026, (2002).

Revised Code § 2951.04. 1 (B) (1) means that the offender must be charged with a felony offense for which the court,upon conviction, would be permitted to impose community control sanctions; thus, to be eligible for intervention in lieuof conviction, a defendant must be charged with an offense for which community control sanctions are available: State

v. Jamison, 2001 Ohio App. LEXIS 1200 (2nd Dist. 2001).

The trial court acted arbitrarily and contrary to the legislative intent expressed in RC § 2951.04.1(A)(1) when it de-nied intervention solely because the defendant's alcohol problem was not serious enough; all that the statute requires isthat drug or alcohol usage be a factor leading to the offender's criminal behavior, of which there was no doubt: State v.

Fullenkamp, 2001 Ohio App. LEXIS 4774 (2nd Dist. 2001).

Pursuant to RC § 2951.04.1(F), a defendant who fails a treatment in lieu of conviction program must be sentencedto imprisonment: State v. Shoaf, 140 Ohio App. 3d 75, 746 N.E.2d 674, 2000 Ohio App. LEXIS 4422 (2000).

The fact that the defendant did not testify at the hearing on her motion for treatment in lieu of conviction was not afactor to be considered under the statute; since the trial court did not address the other factors contained in RC §

ORC Ann. 2951.041Page 8

2951.04.1(B), the cause would be remanded to the trial court for the court to consider these factors: State v. Campbell,1998 Ohio App. LEXIS 3554 (5th Dist. 1998).

A court has discretion to grant treatment in lieu of conviction for a driving under the influence charge when bothalcohol and drags are found in the defendant's system: State v. Baker, 131 Ohio App. 3d 507, 722 NE.2d 1080, 1998Ohio App. LEXIS 6405 (1998).

The court may not deny the form of treatment contemplated by RC § 2951.04.1 merely because it believes the sameends may be achieved at a cheaper cost by the court's own probation department: State v. Gadd, 66 Ohio App. 3d 278,584 N.E.2d 1, 1990 Ohio App. LEXIS 733 (1990).

An eligibility hearing on an offender's request for treatment in lieu of conviction under RC § 2951.04.1(A) is man-datory only if the request comes before the entry of a plea: State v. Lampkin, 3 Ohio App. 3d 341, 445 N.E.2d 711(1982).

An application for treatment in lieu of conviction may not be granted before trial where defendant has pleaded notguilty: State ex rel. Taylor v. Glasser, 50 Ohio St. 2d 165, 364 NE.2d 1 (1977).

MEDICATIONS.

There was no violation of equal protection because, even if the record had substantiated the claim that dopaminewas a substantial factor in the commission of defendant's offense, attempt to commit unlawful sexual conduct with aminor and importuning, which it did not, such medications were not included in RC § 2951.041 allowing for interven-tion in lieu of conviction. The statute could not be expanded to include matters that the legislature had not prescribed.State v. Turner, 156 Ohio App. 3d 177, 805 N.E. 2d 124, 805 N.E.2d 124, 2004 Ohio App. LEXIS 423, 2004 Ohio 464,(Feb. 6, 2004).

NONSUPPORT OF DEPENDENTS.

Determination that defendant was ineligible for intervention in lieu of conviction because a victim was under theage of 13, pursuant to Ohio Rev. Code Ann. § 2951.041(B)(7), was erroneous because the victim in a nonsupport caseunder Ohio Rev. Code Ann. § 2919.21(B) was the child support payee, not the dependent child. State v. Drake, 192 OhioApp. 3d 216, 948 tV. E.2d 965, 2011 Ohio App. LEXIS 19, 2011 Ohio 25, (2011).

"Victim" in a nonsupport case is not the dependent child who is the object of a support order. Rather, the victim isthe custodial parent to whom the support payments are to be made. Thus the defendant was not ineligible for interven-tion in lieu of conviction: Coleman v. Portage County Eng'r, 191 Ohio App. 3d 32, 944 NE.2d 756, 2010 Ohio App.LEXIS 5253, 2010 Ohio 6255, (2010).

ORDERS.

A pretrial order denying a motion under RC § 2951.04.1 for treatment in lieu of conviction does not affect a sub-stantial right and is not a final appealable order: State v. Chalender, 99 Ohio App. 3d 4, 649 N.E.2d 1254, 1994 OhioApp. LEXIS 5333 (1994).

RIGHT TO COUNSEL.

Defendant's claim that he was denied counsel in a hearing on his motion for intervention in lieu of conviction, pur-suant to RC § 2951.041, lacked merit, as he was assigned counsel upon being found indigent and he never informed thecourt that he had his own retained counsel, and further, the right to counsel under Ohio R. Crim. P. 32.3(B) govetned therevocation of probation, which was a community control sanction, and intervention under RC § 2951.041 was notwithin that category; further, RC § 2951.041 did not require the trial court to advise defendant that he was entitled toretained counsel, and the right under Ohio R. Crim. P. 32.3(B) could be waived. State v. Ingram, 2005 Ohio App. LEXIS1918, 2005 Ohio 1967, (2005).

SEALING OF RECORD.

Trial court did not err by denying defendant's request to seal her record because she was not eligible until threeyears had passed once the charges were dismissed against her after completion of intervention in lieu of conviction,pursuant to the plain meaning of Ohio Rev. Code Ann. § 2951.041(E). The unambiguous language of § 2951.041(E)

ORC Ann. 2951.041Page 9

required the trial court to follow the provisions within Ohio Rev. Code Ann. §§ 2953.31 to 2953.36, rather than OhioRev. Code Ann. § 2953.52(A)(1). State v. Niesen-PennycufJ; 2011 Ohio App. LEXIS 2306, 2011 Ohio 2704, (June 6,2011).

Should a trial court fmd that an applicant is eligible for sealing, it must adhere to the statutory provision set forth inOhio Rev. Code Ann. § 2951.041(E), and order the sealing of records in the manner provided in Ohio Rev. Code Ann. §§2953.31 to 2953.36. State v, Niesen-Pennycuff, 2011 Ohio App. LEXIS 2306, 2011 Ohio 2704, (June 6, 2011).

Where the court ordered treatment in lieu of conviction on the drug abuse charges and subsequently dismissed thecharges, the defendant could have the records sealed under RC § 2953.52: State v. Fortado, 108 Ohio App. 3d 706, 671N.E.2d 622, 1996 Ohio App. LEXIS 248 (1996).

SENTENCING.

Revocation of defendant's intervention and imposition of sentence on her guilty plea was not error as the law re-quired that a participant in an intervention program be willing to comply with the court's terms and conditions, whichshe was not. State v. Oliver, 2003 Ohio App. LEXIS 5069, 2003 Ohio 5710, (Oct. 24, 2003).

VIOLATION OF PROBATION.

Trial court's imposition of tceatment in lieu of conviction (TLC) pursuant to RC § 2951.041 was proper, and upondefendant's repeated violations, the imposition of first community control conditions and then imprisonment was proper,as there was no limit on the length of sentence imposed upon violation of TLC except as to the penalties applicable tothe original crime committed, which were not exceeded. The trial court properly applied the amended version of RC §2951.041, as defendant sought TLC after the effective date of the amendment, and the prospective application was not aviolation of ex post facto laws under U.S. Const. art. I, § 10. State v. McCarty, 2006 Ohio App. LEXIS 528, 2006 Ohio588, (2006).

The trial court did not abuse its discretion in finding that the defendant had violated the terms of his rehabilitation,which included that he comply with the conditions of probation, where he had been arrested after using his vehicle todrag a police officer several feet, causing serious physical harm, and where he possessed cocaine and $ 6,000 in cash atthe time of his arrest: State v. Lattimore, 2001 Ohio App. LEXIS 4143 (12th Dist. 2001).

WAIVER.

Defendant waived his right to an indictment where he was charged with various drug offenses and his motion forintervention in lieu of conviction pursuant to RC § 2951.041 was accepted by the trial court, and defendant's guilty pleato a different drug offense than he was charged with was accepted and sealed by the trial court. There was no error un-der § 2951.041(A)(1) and (B)(5) in assessing defendant's availiability for intervention in lieu of conviction, as defendanthad been previously assessed and the trial court made its decision based thereon. State v. White, 2006 Ohio App. LEXIS4660, 2006 Ohio 4746, (Sept. 12, 2006).

Trial court's decision denying defendant's motion for intervention in lieu of conviction was affirmed because, pur-suant to Ohio R. Crim. P. 11, defendant waived his right to challenge the trial court's ruling on whether intervention inlieu of conviction was appropriate when he pled guilty to the offenses. State v. Bach, 2006 Ohio App. LEXIS 429, 2006Ohio 501, (2006).