[Cite as State v. Kuhn, 2018-Ohio-4065.]




                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




 STATE OF OHIO,                                  :

        Plaintiff-Appellee,                      :     CASE NO. CA2018-01-003

                                                 :             OPINION
     - vs -                                                     10/8/2018
                                                 :

 CHELSEA KUHN,                                   :

        Defendant-Appellant.                     :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 16CR31682



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, OH, for plaintiff-appellee

Kidd & Urling, LLC, Thomas W. Kidd, Jr., 8913 Cincinnati-Dayton Road, West Chester, OH
45069, for defendant-appellant



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, Chelsea Kuhn, appeals from the decision of the Warren

County Court of Common Pleas revoking her intervention in lieu of conviction ("ILC") after

she was found guilty of violating the terms and conditions of her ILC treatment plan. For

the reasons outlined below, we affirm.
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                              Facts and Procedural History

       {¶ 2} On March 14, 2016, the Warren County Grand Jury returned a three-count

indictment charging Kuhn with single counts of trespass in a habitation, resisting arrest, and

obstructing official business. The charges arose after Kuhn trespassed into the home of

her ex-boyfriend's mother, thus prompting a call to the police. After the police arrived at the

scene, Kuhn, who was intoxicated, wrestled with police as the responding officers

attempted to place her under arrest. The record indicates Kuhn struggles with substance

abuse and mental health issues, including severe and debilitating anxiety, depression, and

manic episodes, which were a significant factor leading to the commission of the above-

named offenses.

       {¶ 3} On May 2, 2016, Kuhn filed a motion with the trial court requesting she be

granted ILC in accordance with R.C. 2951.041. Pursuant to that statute, if an offender is

charged with a crime, and the trial court has reason to believe that drug or alcohol use was

a factor leading to the commission of that crime, "the court may accept, prior to the entry of

a guilty plea, the offender's request for intervention in lieu of conviction."            R.C.

2951.041(A)(1). After filing her motion for ILC, the trial court ordered Kuhn to submit to an

assessment to determine her eligibility for ILC and, if she was deemed eligible, the

appropriate ILC treatment plan.

       {¶ 4} On June 21, 2016, the trial court held a hearing on Kuhn's motion for ILC. At

this hearing, the trial court determined Kuhn was eligible for ILC and thereafter granted

Kuhn's request that she be placed on ILC. In accordance with R.C. 2951.041, Kuhn then

entered a guilty plea to the three charged offenses then pending, which the trial court

accepted, and placed Kuhn on ILC with a corresponding ILC treatment plan. The trial court

thereafter informed Kuhn that she was to adhere to all of the terms and conditions of her

ILC treatment plan. This included a requirement that Kuhn comply with all orders given to

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her by the probation officer assigned to her case.

       {¶ 5} Over a year later, on October 30, 2017, Kuhn's probation officer filed a report

with the trial court alleging Kuhn had violated the terms and conditions of her ILC treatment

plan by failing to report as instructed. Kuhn's probation officer further alleged that "after

attempts to contact [Kuhn] were unsuccessful a warrant was issued for her arrest." After

receiving this report, the trial court scheduled the matter for a hearing on November 1, 2017.

Kuhn appeared at this hearing and entered a plea of not guilty to violating the terms and

conditions of her ILC treatment plan. Kuhn was then appointed an attorney and a final

hearing on the matter was scheduled for November 9, 2017.

       {¶ 6} On November 6, 2017, three days before the final hearing was scheduled to

begin, Kuhn filed a motion requesting a continuance so that she could submit to a mental

health evaluation. Three days later, Kuhn appeared before the trial court for the previously

scheduled November 9, 2017 final hearing. As part of this hearing, the trial court noted that

Kuhn needed a mental health evaluation so that she could be properly diagnosed and

treated for her mental health issues. The trial court then granted Kuhn's motion for a

continuance and rescheduled the matter for final hearing on December 29, 2017.

       {¶ 7} On December 11, 2017, Kuhn filed a notice with the trial court alleging she

"may have been insane" in the weeks leading up to when she failed to report to her

probation officer as alleged. In support, Kuhn argued there was no evidence that she knew

that she had been instructed to report to her probation officer as required by the terms and

conditions of her ILC treatment plan. Kuhn also argued that she "did not choose to

abscond" due to her mental health issues at that time, which, according to affidavits

submitted by Kuhn's parents, included severe and debilitating anxiety and depression.

       {¶ 8} On December 29, 2017, Kuhn appeared at the final hearing before the trial

court and stipulated to the fact that she did not report to her probation officer as alleged and

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as required by the terms and conditions of her ILC treatment plan. Kuhn, however, argued

she should not be found guilty of violating her ILC treatment plan due to her mental health

issues. Kuhn also argued that she should not be found guilty because she did not act

knowingly or purposefully in failing to report to her probation officer. Specifically, Kuhn

argued "[n]o matter whether you call it knowing, aware, purposeful intent, there wasn't."

Kuhn further argued that she was "just a person with some severe mental health defects

and that affects her decision in this matter."

       {¶ 9} The trial court was not persuaded by Kuhn's arguments and found her guilty

of violating the terms and conditions of her ILC treatment plan as alleged by her probation

officer. In so holding, the trial court stated:

              It's my job to apply the law as I see it. The law is, at least as we
              sit here today, Ms. Kuhn, that if you violate the terms of the
              treatment plan, then I have to revoke your intervention in lieu of
              conviction, so based upon that and that reason alone, I am
              going to revoke your intervention in lieu of conviction.

After finding Kuhn guilty of violating the terms and conditions of her ILC treatment plan, the

trial court reinstated her prior guilty plea and sentenced Kuhn to a three-year community

control term. Kuhn now appeals from the trial court's decision revoking her ILC, raising

three assignments of error for review.

                  Intervention in Lieu of Conviction and R.C. 2951.041

       {¶ 10} Before addressing Kuhn's three assignments of error, we note that it is R.C.

2951.041 that governs the ILC procedure. Generally, R.C. 2951.041 provides that, upon

request, certain eligible offenders may be placed under the general control and supervision

of the county probation department, or another comparable agency, "and if the individual

successfully completes an intervention plan, he will have the criminal proceedings against

him dismissed." State v. Ingram, 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967, ¶ 9;

State v. Lingg, 2d Dist. Montgomery No. 2011 CA 8, 2011-Ohio-4543, ¶ 9.

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       {¶ 11} By enacting R.C. 2951.041, "'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. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, ¶

10, quoting State v. Shoaf, 140 Ohio App.3d 75, 77 (10th Dist.2000), citing State v. Baker,

131 Ohio App.3d 507, 510 (7th Dist.1998). "ILC is not designed as punishment, but rather

as an opportunity for first-time offenders to receive help for their dependence without the

ramifications of a felony conviction." Id., citing Ingram at ¶ 13. The granting of a motion for

ILC lies in the trial court's sound discretion. State v. Lattimore, 12th Dist. Butler No.

CA2000-12-255, 2001 Ohio App. LEXIS 4143, *3-4 (Sept. 17, 2001), citing State v. Gadd,

66 Ohio App.3d 278, 279-280 (2d Dist.1990).

       {¶ 12} Assignment of Error No. 1:

       {¶ 13} TRIAL COURT ERRED BY REVOKING KUHN'S INTERVENTION IN LIEU

OF CONVICTION STATUS WHEN THE EVIDENCE ADDUCED AT THE HEARING

FAILED TO ESTABLISH THAT SHE DELIBERATELY VIOLATED THE TERMS OF HER

TREATMENT PLAN.

       {¶ 14} In her first assignment of error, Kuhn argues the trial court erred by revoking

her ILC when there was no evidence she deliberately and/or willfully violated the terms and

conditions of her ILC treatment plan. However, as this court has stated previously, there is

no authority to support Kuhn's claim that "she could only be found guilty of violating the

terms and conditions of her ILC upon the state demonstrating she did so purposefully."

State v. Schwab, 12th Dist. Warren No. CA2017-03-037, 2017-Ohio-7812, ¶ 13. Given the

statutory definition of "purposely" as provided in R.C. 2901.22(A), we find the same would

hold true regarding Kuhn's claims that she could only be found guilty upon the state

demonstrating she did so deliberately and/or willfully. See R.C. 2901.22(A) ("[a] person

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acts purposely when it is the person's specific intention to cause a certain result, or, when

the gist of the offense is a prohibition against conduct of a certain nature, regardless of what

the offender intends to accomplish thereby, it is the offender's specific intention to engage

in conduct of that nature"). Kuhn's claim otherwise lacks merit.

       {¶ 15} In so holding, although addressing probation and community control

violations, we note that several courts throughout this state have found no authority that

mandated the state introduce evidence an offender willfully violated the terms of his or her

probation or community control. See State v. Stockdale, 11th Dist. Lake No. 96-L-172,

1997 Ohio App. LEXIS 4363, *5 (Sept. 26, 1997) (no authority that mandates the state must

introduce evidence showing probation violation was willful); State v. Miller, 6th Dist. Fulton

No. F-05-016, 2006-Ohio-4810, ¶ 15 (no requirement that the state prove willfulness before

the trial court can revoke an offender's community control); State v. Wolfson, 4th Dist.

Lawrence No. 03CA25, 2004-Ohio-2750, ¶ 12 (state need not find an offender violated the

terms of her community control willfully before the trial court could revoke the offender's

community control); but see State v. Grant, 1st Dist. Hamilton Nos. C-150608 and C-

150609, 2016-Ohio-7857, ¶ 18 (in order for a court to revoke an offender's community

control for nonpayment of financial obligations, such as court costs, fees, and restitution,

and sentence the offender to a term of imprisonment, the offender's failure must have been

willful and not the result of indigence).

       {¶ 16} These cases, however, although informative, "are inapplicable to the

revocation of [ILC], which is a voluntary statutory rehabilitation program designed to give

an offender the opportunity to address issues that contributed to the commission of the

offense and to avoid a criminal conviction as long as the offender successfully completes

the intervention plan and complies with its terms and conditions." State v. Allen, 10th Dist.

Franklin No. 17AP-341, 2018-Ohio-305, ¶ 15. The fact remains that there is no authority to

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support Kuhn's claim that "she could only be found guilty of violating the terms and

conditions of her ILC upon the state demonstrating she did so purposefully." Schwab, 2017-

Ohio-7812 at ¶ 13. Kuhn's first assignment of error lacks merit and is overruled.

       {¶ 17} Assignment of Error No. 2:

       {¶ 18} TRIAL COURT ERRED TO DETRIMENT OF MS. KUHN IN BELIEVING IT

HAD NO DISCRETION TO CONTINUE HER ON INTERVENTION IN LIEU OF

CONVICTION AFTER FINDING THAT SHE FAILED TO COMPLY WITH THE

TREATMENT PLAN.

       {¶ 19} In her second assignment of error, Kuhn argues the trial court erred by finding

it was required to revoke her ILC upon finding her guilty of violating the terms and conditions

of her ILC treatment plan rather than merely continuing her on ILC. We again disagree.

       {¶ 20} As this court stated in State v. Davis, 12th Dist. Warren Nos. CA2013-12-129

and CA2013-12-130, 2014-Ohio-2122, it is well-established that the now former R.C.

2951.041(F) then in effect "clearly and unambiguously conveys the legislative intent that

the trial court must sentence a defendant who is found to have failed his or her program of

treatment in lieu of conviction to an appropriate sanction under R.C. Chapter 2929." Id. at

¶ 10, citing State v. Abi-Aazar, 149 Ohio App.3d 359, 2002-Ohio-5026, ¶ 34-36 (9th Dist.),

citing State v. Taylor, 10th Dist. Franklin No. 99AP-533, 2000 Ohio App. LEXIS 950, *6

(Mar. 14, 2000); see also State v. Cumston, 3d Dist. Marion No. 9-99-83, 2000 Ohio App.

LEXIS 3056, *5 (June 27, 2000) (addressing former R.C. 2951.041[F] finding it clear and

unambiguous in its requirements that trial court must enter a guilt finding and a term of

imprisonment for violation of intervention program conditions). This is markedly different

from previous versions of R.C. 2951.041(F) that offered "no specific guidelines as to when

a court should enter an adjudication of guilt and when it should allow the violator to remain

in treatment." State v. Thomas, 4th Dist. Washington Nos. 88 CA 22 and 88 CA 29, 1989

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Ohio App. LEXIS 2658, *22-23 (June 28, 1989) (addressing former statute that allowed

court to "take such actions as it considers appropriate" upon finding a violation of the terms

and conditions of ILC occurred). Therefore, based on the law in effect at that time, the trial

court did not err by finding it was required to revoke ILC upon finding Kuhn guilty of violating

the terms and conditions of her ILC treatment plan rather than continuing her on ILC.

       {¶ 21} Kuhn nevertheless argues the trial court should have continued her on her

ILC treatment plan due to the General Assembly passage of Am.Sub.S.B. No. 33, 2017

Ohio Laws File 40 on December 22, 2017. Pursuant to that bill, the General Assembly

planned to amend R.C. 2951.041(F) by removing the requirement that mandated the trial

court to sentence an offender who was found guilty of violating his or her ILC treatment plan

to an appropriate sanction under R.C. Chapter 2929.            Instead, pursuant to the now

amended R.C. 2951.041(F), the General Assembly determined that it would be better

practice to grant a trial court discretion to (1) continue the offender on ILC, (2) continue the

offender on ILC with additional terms, conditions, and sanctions, or (3) enter a finding of

guilty and impose an appropriate sanction under R.C. Chapter 2929 upon finding the

offender failed to comply with the terms of his or her ILC treatment plan.

       {¶ 22} That statute, however, although passed by the General Assembly on

December 22, 2017, had an effective date of March 23, 2018. This was well after the trial

court found Kuhn guilty of violating the terms and conditions of her ILC treatment plan.

Although Kuhn suggests otherwise, it is well-established that a trial court, just as this court

on appeal, must comply with the law as written and then in effect. Kuhn would undoubtedly

prefer to be subject to the now amended ILC statute. Kuhn, however, did not have any

rights vested by the General Assembly's passage of Am.Sub.H.B. No. 33 until its effective

date of March 23, 2018. "In the absence of constitutional limitations, the legislature is free

to determine for itself when an act shall go into effect." State v. Dere, 4th Dist. Ross No.

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96CA2247, 1997 Ohio App. LEXIS 2961, *6 (June 30, 1997). This is true despite the

language found in R.C. 1.58(B), which applies only "when a statute is amended after the

commission of a crime but before sentence is imposed." State v. Kaplowitz, 100 Ohio St.3d

205, 2003-Ohio-5602, ¶ 8.

       {¶ 23} The trial court in this case found Kuhn guilty of violating the terms and

conditions of her ILC treatment plan by failing to report to her probation officer as instructed.

Upon finding Kuhn guilty, the trial court then sentenced Kuhn to an appropriate sanction

under R.C. Chapter 2929; specifically, three years of community control. This occurred well

before amended R.C. 2951.041(F) came into effect on March 23, 2018. While Kuhn

suggests otherwise, there was no reason to "arbitrarily wait" until the effective date to apply

the statutory language of the now amended R.C. 2951.041(F) in this case. Given the fact

that Kuhn stipulated that she did not report to her probation officer as required by the terms

and conditions of her ILC treatment plan, the record fully supports the trial court's decision

finding Kuhn guilty and thereafter sentencing her to a three-year community control term.

Kuhn's second assignment of error is overruled.

       {¶ 24} Assignment of Error No. 3:

       {¶ 25} MS. KUHN WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.

       {¶ 26} In her third assignment of error, Kuhn argues she received ineffective

assistance of counsel when her trial counsel failed to move for a continuance until after the

amendment to R.C. 2951.041(F) came into effect on March 23, 2018. We disagree.

       {¶ 27} Counsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment. State

v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. As a result, to

prevail on an ineffective assistance of counsel claim, Kuhn must demonstrate (1) her trial

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counsel's performance fell below an objective standard of reasonableness, and (2) she was

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052

(1984); State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7. The

failure to make an adequate showing on either prong is fatal to an ineffective assistance of

counsel claim. State v. Zielinski, 12th Dist. Warren No. CA2010-12-121, 2011-Ohio-6535,

¶ 50.

        {¶ 28} As it relates to the first prong regarding her trial counsel's performance, Kuhn

must show her trial counsel made errors so serious that he was not functioning as the

"counsel" guaranteed a defendant by the Sixth Amendment to the United States

Constitution. State v. Miller, 12th Dist. Clermont No. CA2011-04-028, 2012-Ohio-995, ¶ 27.

On the other hand, as it relates to the second prong requiring a showing of prejudice, Kuhn

must show that, but for her trial counsel's errors, there is a reasonable probability that the

result of trial would have been different. State v. Kinsworthy, 12th Dist. Warren No.

CA2013-06-053, 2014-Ohio-1584, ¶ 42. A "reasonable probability" is a probability that is

sufficient to undermine confidence in the outcome. State v. Graves, 12th Dist. Clermont

No. CA2015-03-022, 2015-Ohio-3936, ¶ 31, citing Strickland at 694.

        {¶ 29} As noted above, Kuhn argues her trial counsel was ineffective for not moving

for a continuance until after the amendment to R.C. 2951.041(F) went into effect on March

23, 2018. In support, Kuhn claims that because her trial counsel did not move for a

continuance, her trial counsel must have not been aware that the General Assembly had

passed Am.Sub.S.B. No. 33 on December 22, 2017. However, based on a review of the

record properly before this court, there is nothing to indicate Kuhn's trial counsel was

unaware of that bill's passage by the General Assembly as Kuhn suggests. Kuhn's claim

otherwise lacks merit and is based on nothing more than pure speculation.

        {¶ 30} Regardless, even assuming Kuhn's trial counsel was unaware of the bill's

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passage, "[i]t is well-established that a trial court has broad discretion in determining

whether to grant or deny a continuance." State v. Robinson, 12th Dist. Butler No. CA2015-

01-013, 2015-Ohio-4533, ¶ 19. In other words, had Kuhn's trial counsel moved for a

continuance, there is no guarantee the trial court would have granted Kuhn's request. This

is particularly true here considering the amendment to R.C. 2951.041(F) did not become

effective until three months later on March 23, 2018. "A trial court has the inherent authority

to manage its own proceedings and control its own docket." State v. James, 5th Dist.

Muskingum No. CT2015-0059, 2016-Ohio-7660, ¶ 35.

       {¶ 31} Because it would have been well within the trial court's discretion to deny

Kuhn's request for a three-month continuance if her trial counsel had made such a request,

Kuhn's trial counsel could reasonably have concluded that moving for a continuance would

have been a futile act. "An attorney is not ineffective for failing to make futile requests[.]"

State v. Harrop, 12th Dist. Fayette No. CA2005-12-036, 2006-Ohio-6080, ¶ 14. Kuhn's trial

counsel was therefore not ineffective for not moving for a continuance until after the

amendment to R.C. 2951.041(F) went into effect on March 23, 2018.

       {¶ 32} In so holding, we note that even if the trial court had continued the matter until

after the amendment to R.C. 2951.041(F) came into effect, the amendment did not require

the trial court to continue Kuhn on her ILC treatment plan. Rather, as noted above, with the

passage of Am.Sub.S.B. No. 33, the General Assembly determined that it would be better

practice to grant a trial court discretion to (1) continue the offender on ILC, (2) continue the

offender on ILC with additional terms, conditions, and sanctions, or (3) enter a finding of

guilty and impose an appropriate sanction under R.C. Chapter 2929 upon finding the

offender failed to comply with the terms of his or her ILC treatment plan. Kuhn's claim

otherwise lacks merit.

       {¶ 33} Just as there was no guarantee that the trial court would have granted Kuhn's

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request for a continuance, there was also no guarantee that the trial court would have

exercised its discretion to continue Kuhn on her ILC treatment plan. The fact that the trial

court stated on the record that it was required to revoke Kuhn's ILC upon finding her guilty

of violating her ILC treatment plan "based on that reason and that reason alone" does not

necessarily mean the trial court would have undoubtedly continued Kuhn on her ILC

treatment plan as she now suggests. Rather, as discussed more fully above, we find the

trial court was merely alluding to the fact that the now former R.C. 2951.04(F) as written

and then in effect mandated the trial court to sentence an offender who was found guilty of

violating his or her ILC treatment plan to an appropriate sanction under R.C. Chapter 2929.

       {¶ 34} Based on the facts and circumstances of this case, Kuhn has failed to show

that a three-month continuance until after the effective date of the amendment to R.C.

2951.041(F) would have resulted in a different outcome; specifically, that the trial court

would have continued her on her ILC treatment plan. Therefore, because we find Kuhn's

trial counsel did not provide her with ineffective assistance, Kuhn's third assignment of error

is overruled.

                                         Conclusion

       {¶ 35} We find no merit to the arguments raised by Kuhn within her three

assignments of error. Our decision, however, should in no way discourage Kuhn from

continuing her efforts to overcome her substance abuse and mental health issues.

Unfortunately, due to a recent increase in substance abuse within this court's jurisdiction,

this court is all too familiar with the struggles of addiction and the impact substance abuse

may have on one's mental health. However, as noted above, the trial court, just as this

court on appeal, must comply with the law as written and then in effect. Simply stated,

despite the clear support Kuhn's family provides, the fact remains that Kuhn violated the

terms and conditions of her ILC treatment plan by failing to report to her probation officer

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as instructed. Therefore, based on the now former R.C. 2951.041(F) applicable to the facts

and circumstances of this case, the trial court did not err by revoking Kuhn's ILC and

sentencing her to three years of community control after she pled guilty to single counts of

trespass in a habitation, resisting arrest, and obstructing official business. Accordingly,

because we can find no error in the trial court's decision, the trial court's decision in this

case is affirmed.

       {¶ 36} Judgment affirmed.


       RINGLAND and HENDRICKSON, JJ., concur.




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