[Cite as State v. Brown, 2014-Ohio-4891.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BROWN COUNTY




STATE OF OHIO,                                   :
                                                        CASE NOS. CA2014-04-007
        Plaintiff-Appellee,                      :                CA2014-04-008

                                                 :             OPINION
   - vs -                                                       11/3/2014
                                                 :

BARBARA BROWN, et al.,                           :

        Defendants-Appellants.                   :



       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                          Case No. CRI 2014-2045



Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Darrell C. Hawkins, P.O. Box 536, Batavia, Ohio 45103, for defendants-appellants, Barbara &
Richard Brown



        RINGLAND, P.J.

        {¶ 1} Defendants-appellants, Barbara Brown and Richard Brown, appeal a decision

of the Brown County Court of Common Pleas denying their motions for intervention in lieu of

conviction (ILC).

        {¶ 2} Identical bills of information were filed against appellants alleging that they

planned or aided in the planning of illegal cultivation of marijuana in violation of R.C.

2923.01(A)(1) and 2925.04(A), a felony of the fourth degree.
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       {¶ 3} Appellants waived indictment and entered pleas of not guilty. Appellants also

filed motions for ILC. On that same day, the trial court scheduled a hearing on the motions

for ILC for March 26, 2014.

       {¶ 4} At the outset of the scheduled hearing, the trial court denied ILC for appellants.

The trial court stated that, "this Court, having reviewed 2951.041(A)(1), hereby, rejects and

dismisses --- overrules those motions." The trial court then accepted appellants' proffered

exhibits into evidence. Appellants further advised the court that there were witnesses

present and that they were prepared to go forward with the motions. The state indicated to

the court that they had no objections to the motions ILC. The trial court then compared

appellants' case to another recently decided case and reiterated the denial of appellants'

motions.

       {¶ 5} After denying the motions, the trial court accepted appellants' pleas of no

contest. Appellants were found guilty of conspiracy in the illegal cultivation of marijuana, a

fourth-degree felony.

       {¶ 6} Appellants now appeal the trial court's decision denying their motions for ILC,

raising a single assignment of error for review.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE

APPELLANTS' MOTIONS FOR INTERVENTION IN LIEU OF CONVICTION.

       {¶ 9} Within this assignment of error, appellants raise two arguments: (1) "[i]f a court

considers a request for ILC, the court must conduct a hearing to determine whether the

offender is statutorily eligible for ILC; must stay all criminal proceedings pending the outcome

of the hearing; and, 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;" and (2) "[i]t is an abuse of discretion for a court to deny an offender's
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request for intervention in lieu of conviction when the trial court imposes criteria different from

those set out in R.C. 2951.041(B)(1)-(10)."

        {¶ 10} Pursuant to R.C. 2951.041(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 criminal offense with which
                  the offender is charged * * * the court may accept, prior to the
                  entry of a guilty plea, the offender's request for intervention in
                  lieu of conviction.

        {¶ 11} While R.C. 2951.041(A)(1) provides that "the court may reject an offender's

request without a hearing," the statute also requires that, "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." (Emphasis added.) R.C. 2951.041(A)(1).

In addition, "[i]f 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." Id.

        {¶ 12} In the present case, the trial court scheduled a hearing to consider appellants'

requests for ILC, but then denied appellants' motions at the outset of that hearing and without

ordering an assessment of appellants as required under R.C. 2951.041(A)(1). Accordingly,

the trial court erred when it failed to hold a hearing and follow the procedures set forth in R.C.

2951.041(A)(1) after having elected to consider appellants' motions for treatment in lieu of
              1
conviction.

        {¶ 13} Based upon the foregoing resolution of appellants' first argument, appellants'

second argument is rendered moot.


1. We note that the state acknowledges this error and concedes that the trial court must hold a hearing and
order an assessment of appellants.

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       {¶ 14} In light of the foregoing, having found that the trial court erred in scheduling a

hearing to consider a request for ILC but failing to conduct that hearing and follow the

procedures outlined in R.C. 2951.041(A)(1), appellants' first assignment of error is sustained.

       {¶ 15} Judgment reversed, appellants' convictions and pleas of no contest are

vacated, and the cause is remanded for the trial court to conduct a hearing in accordance

with R.C. 2951.041.


       M. POWELL, J., concurs.


       S. POWELL, J., concurs separately.


       S. POWELL, J., concurring separately.

       {¶ 16} Although I believe reversing this case to hold a hearing is likely nothing more

than a futile act, based on the language of R.C. 2951.041(A)(1), I agree with the majority's

analysis and resolution of appellants' single assignment of error. I write separately, however,

to address the "inartful" wording of that statute and implore the legislature to revisit this

statute so as to alleviate any potential confusion regarding the hearing requirements therein.

       {¶ 17} I am not alone in expressing these concerns. To date, at least two other courts

have already characterized the wording of the statute to be "inartful" in that a trial court's

mere consideration of an offender's ILC motion triggers the right to a hearing "as a trial court,

by definition, 'considers' an offender's request for ILC by making any ruling." (Emphasis sic.)

State v. Branch, 2d Dist. Montgomery No. 25261, 2013-Ohio-2350, ¶ 12; State v. Cebula,

11th Dist. Lake No. 2013-L-085, 2014-Ohio-3276, ¶ 18 ("[b]y virtue of an ILC motion being

filed, a trial court always considers the motion to some degree"). However, this is clearly not

what the legislature intended for "such an interpretation is inconsistent with the trial court's

ability to reject the ILC motion without a hearing." Cebula. That then begs the question:

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What did the legislature intend by including "elects to consider" as opposed to some other

less amorphous phrase?

       {¶ 18} The statute also does not provide any guidance as to what is necessary to

constitute a "hearing." As the Second District Court of Appeals stated in Branch, "is it a full

evidentiary hearing, or the opportunity to be heard, similar to allocution?" Id., 2013-Ohio-

2350 at ¶ 12. Regardless, the statute requires some type of "hearing" to be held when, as

here, the trial court elects to consider the offender's request. Although I believe the trial court

should be given some leeway in regards to what constitutes a hearing under R.C.

2951.041(A)(1), further guidance in this matter would be beneficial to avoid any additional

strain on this state's already overwhelmed trial court dockets.

       {¶ 19} The error in this case occurred once the trial court failed to hold a hearing after

electing to consider the appellant's request. "[C]ase law is clear that when a conviction is

reversed on appeal, the trial court must proceed from the point at which the error occurred."

State v. O'Neill, 6th Dist. Wood No. WD-10-029, 2011-Ohio-5688, ¶ 20, citing State ex rel.

Stevenson v. Murray, 69 Ohio St.2d 112, 113 (1982); see, e.g., State v. Gonzales, 151 Ohio

App.3d 160, 180, 2002-Ohio-4937 (1st Dist.) (reversing a conviction on appeal and

remanding to the trial court because the trial court must proceed from the point where the

error occurred). In turn, although the trial court could have simply rejected appellants'

request outright, once the trial court elected to consider the request, pursuant to R.C.

2951.041(A)(1), the trial court was required to: (1) hold a hearing, (2) stay all criminal

proceedings pending the outcome of that hearing, and (3) order an assessment of appellants

for purposes of determining if they are eligible for ILC. The trial court did not follow the

requirements of R.C. 2951.041(A)(1). Therefore, I concur with the majority's analysis and

resolution of appellants' single assignment of error.



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