[Cite as State v. Phillipeck, 2013-Ohio-2001.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :   JUDGES:
                                                 :
                                                 :   Hon. John W. Wise, P.J.
       Plaintiff-Appellee                        :   Hon. Patricia A. Delaney, J.
                                                 :   Hon. Craig R. Baldwin, J.
-vs-                                             :
                                                 :   Case No. 12 CAA 08 0060
FRANCIS PHILLIPECK                               :
                                                 :
                                                 :
       Defendant-Appellant                       :   OPINION


CHARACTER OF PROCEEDING:                             Appeal from the Delaware County
                                                     Court of Common Pleas, Case No.
                                                     11CR-I-12-0625



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT ENTRY:                              May 5, 2013




APPEARANCES:

For Defendant - Appellant:                           For Plaintiff - Appellee:

BRIAN G. JONES                                       CAROL HAMILTON O’BRIEN
The Law Office of Brian Jones                        Prosecuting Attorney
2211 U.S. Highway 23 North                           PETER B. RUFFING
Delaware, OH 43015                                   Assistant Prosecuting Attorney
                                                     140 N. Sandusky Street 3rd Floor
                                                     Delaware, OH 43015
Baldwin, J.

         {¶1} Appellant Francis Phillipeck appeals a judgment of the Delaware County

Common Pleas Court convicting him of possession of heroin (R.C. 2925.11(A)) and

theft (R.C. 2913.02(A)(1)) upon a plea of guilty and sentencing him to a period of

community control not to exceed three years.

                             STATEMENT OF FACTS AND CASE

         {¶2} On December 2, 2011, appellant was indicted by the Delaware County

Grand Jury with possession of heroin and theft. Appellant stole a toy gun from a

Meijer’s store late at night, when he was intoxicated from drug use. He had a spoon

and needle containing heroin in the pocket of his pants at the time of his arrest.

         {¶3} Appellant entered a plea of guilty to both charges and sought treatment

in lieu of conviction (ILC). The case proceeded to a hearing on his motion for ILC.

The court found appellant was technically eligible for ILC pursuant to R.C. 2951.041.

The court noted that appellant, who was 25 years old, had a drug problem for an

extensive period of time, and that the information in the medical assessment and pre-

sentence investigation indicated that ILC might not demean the seriousness of the

offenses and might reduce recidivism.

         {¶4} However, the trial court denied ILC for four reasons: appellant’s long

history of drug use, appellant’s lack of commitment to treatment in the past even

though his family has insurance to cover residential treatment, appellant’s refusal to

take responsibility for the death of his girlfriend who died of an overdose, and the

court’s belief that appellant stole the toy gun intending to use it to commit an additional

theft.
      {¶5} Appellant assigns one error on appeal:

      {¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

APPELLANT TREATMENT IN LIEU OF CONVICTION WHEN THE COURT DENIED

THE REQUEST BECAUSE MR. PHILLIPECK HAD A LONG HISTORY OF DRUG

USE, HE LACKED COMMITMENT TO TREATMENT EVEN THOUGH HE HAD

INSURANCE, HE REFUSED TO TAKE RESPONSIBILITY FOR THE DEATH OF HIS

GIRLFRIEND, AND STOLE A TOY GUN AS A MEANS OF GETTING ADDITIONAL

FUNDS FOR HIS DRUG HABIT.”

                                            I.


      {¶7} Appellant, in his sole assignment of error, argues that the trial court

abused its discretion in denying his request for ILC.

      {¶8} R.C. 2951.041 provides:

      {¶9}    “(A)(1) If an offender is charged with a criminal offense and the court

has reason to believe that drug or alcohol usage by the offender was a factor leading

to the offender's criminal behavior, the court may accept, prior to the entry of a guilty

plea, the offender's request for intervention in lieu of conviction. The request shall

include a waiver of the defendant's right to a speedy trial, the preliminary hearing, the

time period within which the grand jury may consider an indictment against the

offender, and arraignment, unless the hearing, indictment, or arraignment has already

occurred. The court may reject an offender's request without a hearing. If the court

elects to consider an offender's request, the court shall conduct a hearing to

determine whether the offender is eligible under this section for intervention in lieu of

conviction and shall stay all criminal proceedings pending the outcome of the hearing.
If the court schedules a hearing, the court shall order an assessment of the offender

for the purpose of determining the offender's eligibility for intervention in lieu of

conviction and recommending an appropriate intervention plan.

       {¶10} “(B) An offender is eligible for intervention in lieu of conviction if the

court finds all of the following:

       {¶11} “(1) The offender previously has not been convicted of or pleaded guilty

to a felony, previously has not been through intervention in lieu of conviction under this

section or any similar regimen, and is charged 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.

       {¶12} “(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 a mandatory prison term, a

mandatory term of local incarceration, or a mandatory term of imprisonment in a jail.

       {¶13} “(3) The offender is not charged with a violation of section 2925.02,

2925.03, 2925.04, or 2925.06 of the Revised Code 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.

       {¶14} “(4) The offender is not charged with a violation of section 2925.11 of

the Revised Code that is a felony of the fourth degree, or the offender is charged with
a violation of that section that is a felony of the fourth degree and the prosecutor in the

case has recommended that the offender be classified as being eligible for

intervention in lieu of conviction under this section.

       {¶15} “(5) The offender has been assessed by an appropriately licensed

provider, certified facility, or licensed and credentialed professional, including, but not

limited to, a program licensed by the department of alcohol and drug addiction

services pursuant to section 3793.11 of the Revised Code, a program certified by that

department pursuant to section 3793.06 of the Revised Code, a public or private

hospital, the United States department of veterans affairs, another appropriate agency

of the government of the United States, or a licensed physician, psychiatrist,

psychologist, independent social worker, professional counselor, or chemical

dependency counselor for the purpose of determining the offender's eligibility for

intervention in lieu of conviction and recommending an appropriate intervention plan.

       {¶16} “(6) The offender's drug or alcohol usage was a factor leading to the

criminal offense with which the offender is charged, intervention in lieu of conviction

would not demean the seriousness of the offense, and intervention would substantially

reduce the likelihood of any future criminal activity.

       {¶17} “(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.

       {¶18} “(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.
      {¶19} “(9) The offender is willing to comply with all terms and conditions

imposed by the court pursuant to division (D) of this section.”

      {¶20} A trial court has discretion to determine whether the particular defendant

is a good candidate for intervention in lieu of conviction. State v. Schmidt, 149 Ohio

App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113. An abuse of discretion involves more

than an error of judgment; it connotes an attitude on the part of the court that is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140, 1141(1983).

      {¶21} We find that the trial court did not abuse its discretion in denying

appellant's request for ILC.    At 25 years of age, appellant already had a long,

pervasive history of drug use. While appellant is correct that a history of drug use is

an element for eligibility, the court could also use this factor to conclude that

recidivism is likely, particularly because appellant had recently taken part in an out-

patient drug treatment program which was unsuccessful, and had not sought

residential treatment prior to his arrest despite coverage under his mother’s insurance

plan. The court speculated that appellant stole the gun intending to use it to commit

another offense. Appellant stated at the hearing that he was so intoxicated at the time

of the offense that he had no idea why he was stealing the toy gun and had no idea

what he was doing. The trial court was in a better position than this court to assess

appellant’s credibility, and the trial court clearly believed he intended to use the toy

gun to commit another theft offense while he was intoxicated on heroin.

      {¶22} It is apparent from the transcript of the ILC hearing that the court did not

believe appellant truly was committed to treatment and that treatment alone would not
substantially reduce the likelihood of any future criminal activity. Treatment was built

into his community control sentence; however, the court apparently believed appellant

needed a clearer understanding of the gravity of his drug use and the potential

seriousness of the consequences of his actions while intoxicated than he would

receive from treatment alone. The trial court did not abuse its discretion in denying

appellant’s request for treatment in lieu of conviction.

       {¶23} The assignment of error is overruled. The judgment of the Delaware

County Common Pleas Court is affirmed. Costs assessed to appellant.



By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.



                                         HON. CRAIG R. BALDWIN



                                         HON. JOHN W. WISE



                                         HON. PATRICIA A. DELANEY


rad/CRB
            IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff - Appellee                 :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   12 CAA 08 0060
FRANCIS PHILLIPECK                      :
                                        :
   Defendant - Appellant                :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                        HON. CRAIG R. BALDWIN



                                        HON. JOHN W. WISE



                                        HON. PATRICIA A. DELANEY
