[Cite as State v. Boehm, 2017-Ohio-4285.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellant                    :   Hon. William B. Hoffman, J.
                                               :   Hon. Earle E. Wise, Jr., J.
 -vs-                                          :
                                               :   Case No. 16-CA-77
                                               :
 SHELLY M. BOEHM                               :
                                               :
                                               :
        Defendant-Appellee                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 16 CR 00033



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            June 13, 2017




APPEARANCES:

 For Plaintiff-Appellant:                          For Defendant-Appellee:

 KENNETH W. OSWALT                                 C. JOSEPH McCOY
 LICKING CO. PROSECUTOR                            57 East Main St.
 BRIAN T. WALTZ                                    Newark, OH 43055
 20 S. Second St., Fourth Floor
 Newark, OH 43055
Licking County, Case No. 16-CA-77                                                        2

Delaney, P.J.

          {¶1} Plaintiff-appellant State of Ohio appeals from the August 11, 2016

Judgment Entry Granting Treatment in Lieu of Conviction of the Licking County Court of

Common Pleas. Defendant-appellee is Shelly M. Boehm.

                          FACTS AND PROCEDURAL HISTORY

          {¶2} The following facts are adduced from appellant’s bill of particulars. This

case arose between April 1, 2014 and April 30, 2014, when appellee worked as a maid

at a residence in Newark and stole “numerous pills containing amphetamine.” Appellee

was charged by indictment with one count of theft of dangerous drugs, a felony of the

fourth degree pursuant to R.C. 2913.02(A)(2) and (B)(6). Appellee entered a plea of not

guilty.

          {¶3} On April 18, 2016, appellee filed a Motion to Continue or Cancel Jury Trial

and Set for Plea and Sentencing, stating appellee was eligible for intervention in lieu of

conviction (ILC) if approved by the prosecutor, but appellee had not yet heard back from

the prosecutor, and she was scheduled to complete a drug assessment and presentence

investigation (PSI) interview. Appellant did not respond.

          {¶4} On May 3, 2016, appellee filed a Motion for Order Granting Intervention in

Lieu of Conviction pursuant to R.C. 2951.041. Appellant did not respond.

          {¶5} On June 13, 2016, a brief hearing was held and the trial court asked whether

appellee had anything to add to her motion for ILC. Defense trial counsel replied that

appellee had a prior sealed felony conviction. The trial court granted a continuance to

allow the parties time to research the effect of a sealed conviction on a defendant’s

eligibility for ILC.
Licking County, Case No. 16-CA-77                                                              3


          {¶6} On August 10, 2016, appellee filed a bench brief in support of her argument

that she was eligible for ILC.

          {¶7} Also on August 10, 2016, a hearing was held on appellee’s motions. The

record reveals a probation officer was present at the hearing but did not testify. The only

witness sworn at the hearing was appellee for the purpose of the plea colloquy. Appellee

argued she was eligible for ILC despite the sealed conviction. Appellant responded

appellee has two prior felony theft convictions within five years, and argued that even if

the prosecutor cannot unseal the prior convictions, the probation department can do so

for purposes of the PSI. Appellee responded that the prior convictions arose from a single

incident and are one felony and one misdemeanor.1

          {¶8} From the bench, the trial court found appellee to be eligible for ILC, finding

the sealed prior conviction cannot be used to disqualify her eligibility and no “prosecutorial

veto” is available to appellant. The trial court further stated appellee is eligible for ILC

based upon a recommendation from the probation department. Appellant objected to the

trial court’s decision.

          {¶9} The record does not contain the PSI, or appellee’s prior convictions, or any

record of the sealing thereof.

          {¶10} We also note the trial court’s judgment entry of August 11, 2016, states “At

the conclusion of the hearing, the Court determined, and the State agreed, that the

Defendant met the eligibility requirements set forth in R.C. 2951.041(B), and granted the

Defendant’s application for Intervention in Lieu of Conviction.” (Judgment Entry Granting




1   The question of what appellant’s prior conviction consists of is not resolved in this record.
Licking County, Case No. 16-CA-77                                                      4


Intervention in Lieu of Conviction, 1).     This statement in the entry is at odds with

appellant’s objection at the hearing, but neither party raised this issue.

        {¶11} Appellant filed a motion for leave to appeal the trial court’s decision and

appellee responded with a memorandum in opposition. On October 21, 2016, we granted

appellant’s motion for leave to appeal.

        {¶12} Appellant hereby appeals from the August 11, 2016 judgment entry of the

trial court.

        {¶13} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

        {¶14} “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION FOR

ILC WITHOUT THE PROSECUTOR RECOMMENDING HER FOR PLACEMENT INTO

THE ILC PROGRAM.”

                                          ANALYSIS

        {¶15} Appellant argues appellee was not eligible for intervention in lieu of

conviction because she had a prior sealed felony conviction. On this record, we disagree.

        {¶16} ILC is a procedure governed by R.C. 2951.041, and in enacting that section,

“the legislature made a determination that when chemical abuse is the cause or at least

a precipitating factor in the commission of a crime, it may be more beneficial to the

individual and the community as a whole to treat the cause rather than punish the crime.”

State v. Shoaf, 140 Ohio App.3d 75, 77, 746 N.E.2d 674 (10th Dist.2000), citing State v.

Baker, 131 Ohio App.3d 507, 510, 722 N.E.2d 1080 (7th Dist.1998). The granting of a

motion for ILC lies in the trial court's sound discretion. State v. Gadd, 66 Ohio App.3d

278, 283, 584 N.E.2d 1 (2nd Dist.1990).
Licking County, Case No. 16-CA-77                                                            5


         {¶17} Eligibility determinations under R.C. 2951.041, however, are matters of law

subject to de novo review. State v. Fowle, 5th Dist. Delaware No. 09 CAA 04 0035, 2010-

Ohio-586, ¶ 37.

         {¶18} Appellant acknowledges the effect of a sealed conviction is not addressed

in the relevant portions of the ILC statute, R.C. 2951.041(B), which address appellee’s

eligibility:

                       (B) An offender is eligible for intervention in lieu of conviction

                if the court finds all of the following:

                       (1) The offender previously has not been convicted of or

                pleaded guilty to a felony offense of violence or previously has been

                convicted of or pleaded guilty to any felony that is not an offense of

                violence and the prosecuting attorney recommends that the offender

                be found eligible for participation in intervention in lieu of treatment

                under this section, 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 a community control sanction on the offender under division

                (B)(2) of section 2929.13 of the Revised Code or with a

                misdemeanor.

                       * * * *.

         {¶19} At the ILC hearing in the instant case, the trial court impliedly found appellee

qualifies as an “offender [who] previously has not been convicted of or pleaded guilty to

a felony offense of violence.” (T.9-10). The trial court thus rejected any suggestion of a
Licking County, Case No. 16-CA-77                                                         6


requirement for pre-approval of ILC from the prosecutor. The trial court was aware of the

prior conviction and took it into account in its disposition of the instant case, based upon

the recommendation of the probation department.

       {¶20} The parties agree that the issue posed by this case is whether a conviction

sealed pursuant to R.C. 2953.32 prevents an offender from eligibility for ILC absent the

state’s recommendation. Appellee’s prior conviction is not before us; nor is the record of

the sealing of the conviction. Nevertheless, appellee conceded she has a “nonviolent

felony conviction that had been sealed pursuant to R.C. 2953.32,” and we proceed with

our analysis on that basis. (Appellee’s Brief, 1).

       {¶21} The effect of the sealing of a conviction is stated in R.C. 2953.32(C)(2),

which provides in pertinent part:

                     * * * *.   The proceedings in the case that pertain to the

              conviction * * * shall be considered not to have occurred and the

              conviction * * * of the person who is the subject of the proceedings

              shall be sealed, except that upon conviction of a subsequent

              offense, the sealed record of prior conviction or bail forfeiture

              may be considered by the court in determining the sentence or

              other appropriate disposition, including the relief provided for in

              sections 2953.31 to 2953.33 of the Revised Code.           (Emphasis

              added.)

       {¶22} It is evident from the plain meaning of the statute that the trial court may

“consider” the prior sealed conviction in the disposition of the instant case. We agree with

appellee that no conflict exists between R.C. 2953.32 and R.C. 2951.041 and effect may
Licking County, Case No. 16-CA-77                                                           7


be given to both. “If a review of the statute conveys a meaning that is clear, unequivocal,

and definite, the court need look no further.” State ex rel. Plain Dealer Publishing Co. v.

Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 38, citing Columbus

City School Dist. Bd. of Edn. v. Wilkins, 101 Ohio St.3d 112, 2004-Ohio-296, 802 N.E.2d

637, ¶ 26. We need not resort to statutory construction when the statute is unambiguous.

Id., citing State v. Evans, 102 Ohio St.3d 240, 2004-Ohio-2659, 809 N.E.2d 11, ¶ 14.

Instead, “our inquiry begins with the statutory text, and ends there as well if the text is

unambiguous.” Id., citing BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct.

1587, 158 L.Ed.2d 338 (2004). When a statute is unambiguous in its terms, courts must

apply it rather than interpret it. Id., citing Specialty Restaurants Corp. v. Cuyahoga Cty.

Bd. of Revision, 96 Ohio St.3d 170, 2002-Ohio-4032, 772 N.E.2d 1165, ¶ 11.

       {¶23} The trial court in this case considered the prior conviction and found

appellee to be both eligible for ILC and suitable for ILC. It is evident from this record that

the trial court gave the prior, sealed conviction due consideration pursuant to R.C.

2953.32(C)(2), supra. The trial court thus complied with both statutes in finding appellee

eligible for ILC, and did not abuse its discretion in finding appellee suitable for ILC.

       {¶24} We find appellant’s arguments to be inapposite. Appellant’s argument is

premised upon R.C. 2953.32(E), which states, “In any criminal proceeding, proof of any

otherwise admissible prior conviction may be introduced and proved, notwithstanding the

fact that for any such prior conviction an order of sealing previously was issued pursuant

to sections 2953.31 to 2953.36 of the Revised Code.” A criminal proceeding is “[o]ne

instituted and conducted for the purpose either of preventing the commission of crime, or

for fixing the guilt of a crime already committed and punishing the offender; as
Licking County, Case No. 16-CA-77                                                           8

distinguished from a 'civil' proceeding, which is for the redress3 of a private injury.” State

v. Ziegler, 6th Dist. Lucas No. 80-6273, 1981 WL 5451, *1 (Oct. 30, 1981). An ILC

proceeding, however, is neither criminal nor civil.         R.C. 2505.02 defines special

proceeding as “an action or proceeding that is specially created by statute.” The ILC

hearing was a special proceeding created by R.C. 2951.041. State v. Dempsey, 8th Dist.

Cuyahoga No. 82154, 2003-Ohio-2579, ¶ 7.

       {¶25} Appellant’s argument is thus unavailing. The trial court was permitted to

consider the prior sealed conviction in disposition of the instant case and did so. R.C.

2953.32(E) does not create a prosecutorial veto to ILC and is inapplicable to the

circumstances here. Upon our de novo review of the applicable guidelines and the record

of this matter, appellee is an eligible offender.

                                       CONCLUSION

       {¶26} Appellant’s sole assignment of error is overruled and the judgment of the

Licking County Court of Common Pleas is affirmed.

By: Delaney, P.J.,

Hoffman, J. and

Wise, Earle, J., concur.
