[Cite as State v. White, 2019-Ohio-905.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       18CA011278

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
QUINN WHITE                                           COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   17CR095944

                                  DECISION AND JOURNAL ENTRY

Dated: March 18, 2019



        CARR, Judge.

        {¶1}     Appellant, Quinn White, appeals the judgment of the Lorain County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     On May 5, 2017, the Lorain County Grand Jury charged White with one count of

carrying a concealed weapon and one count of improperly handling a firearm in a motor vehicle.

After pleading not guilty to the charges at arraignment, White filed a motion for intervention in

lieu of conviction (“ILC”) pursuant to R.C. 2951.041. The trial court referred White to the Adult

Probation Department for evaluation and an eligibility report. Thereafter, White appeared before

the trial court and entered a guilty plea to the charges in the indictment. Several weeks later, the

parties appeared for a hearing on White’s ILC motion. The trial court ultimately denied the

motion on the basis that it did not see a connection between addiction issues and the crimes
                                                 2


charged. The matter proceeded to sentencing where the trial court imposed a three-year term of

community control.

       {¶3}    On appeal, White raises one assignment of error.

                                                 II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
       REFUSING TO GRANT APPELLANT’S MOTION FOR INTERVENTION IN
       LIEU OF CONVICTION WHEN HE WAS STATUTORILY ELIGIBLE
       PURSUANT TO R.C. 2951.041(B).

       {¶4}    In his sole assignment of error, White contends that the trial court erred and

abused its discretion in denying his ILC motion. Specifically, White contends that the trial court

misinterpreted the eligibility conditions set forth in R.C. 2951.041(B)(6). This Court disagrees.

       {¶5}    The statutory scheme governing ILC is set forth in R.C. 2951.041.1               R.C.

2951.041(A)(1) states that “[i]f 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 [ILC].” The statute further provides as follows:

       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 [ILC] 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 [ILC] and recommending an appropriate
       intervention plan.




1
  Minor amendments to R.C. 2951.041 took effect on three separate occasions in 2018. For the
purposes of this appeal, we apply the version of the statute in place at the time the trial court
ruled on White’s motion for intervention in lieu of conviction.
                                                  3


R.C. 2951.041(A)(1). R.C. 2951.041(B) sets forth the conditions that a defendant must meet in

order to be eligible for ILC. R.C. 2951.041(C) provides that at the conclusion of the hearing,

“the court shall enter its determination as to whether the offender is eligible for ILC and as to

whether to grant the offender’s request.” If the trial court finds that an offender is eligible for

ILC and grants the request, “the court shall accept the offender’s plea of guilty[.]” Id. “In

addition, the court then may stay all criminal proceedings and order the offender to comply with

all terms and conditions imposed by the court pursuant to [R.C. 2951.041(D)].”                   R.C.

2951.041(C).

       {¶6}    The Supreme Court of Ohio has stated that “ILC is a statutory creation that allows

a trial court to stay a criminal proceeding and order an offender to a period of rehabilitation if the

court has reason to believe that drug or alcohol usage was a factor leading to the offense.” State

v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, ¶ 9, citing R.C. 2951.041(A)(1). “If, after a

hearing, the trial court determines that an offender is eligible for ILC, then it shall accept the

offender’s guilty plea, place the offender under the general control and supervision of the

appropriate probation or other qualified agency, and establish an intervention plan for the

offender.” Massien at ¶ 9, citing R.C. 2951.041(C) and (D).

       {¶7}    “If an offender satisfies all of the statutory eligibility requirements for

intervention [set forth in R.C. 2951.041(B)], the trial court has discretion to determine whether a

particular offender is a good candidate for intervention.” Massien at ¶ 11, quoting State v.

Geraci, 10th Dist. Franklin No. 04AP-26, 2004-Ohio-6128, ¶ 5.
                                                 4


                                            Background

       {¶8}    As noted above, White was charged with carrying a concealed weapon and

improperly handling a firearm in a motor vehicle. After White filed his motion for ILC, the trial

court issued an order referring White to the probation department for evaluation.

       {¶9}    On December 13, 2017, White appeared before the trial court and pleaded guilty

to the charges in the indictment. Prior to the commencement of the plea colloquy, defense

counsel noted that White’s motion remained outstanding and that he had discussed “the contours

of the [ILC] program” with his client. Defense counsel stated that it was his understanding that

the propriety of the motion would be addressed at a hearing on February 7, 2018, at which time

the evaluation report would be available. The State acknowledged that it was aware of White’s

outstanding motion and it urged the trial court to accept White’s change of plea.

       {¶10} During the plea colloquy, White indicated that he understood that, upon

acceptance of the guilty pleas, the trial court could proceed with judgment and sentence. The

trial court asked “[o]ther than discussions regarding intervention in lieu, were there any other

promises made to you?” White responded in the negative. At the conclusion of the hearing, the

trial court set a date for “sentencing and/or ruling on the intervention in lieu motion[.]” The trial

court then stated as follows:

       In the meantime, sir, if you’re hoping for intervention in lieu – or, at the very
       least, community control -- you’ve got to demonstrate to me that you can succeed
       in those areas. That means you don’t break the law, you test clean for drugs,
       you’re respectful and cooperative with the probation department and any other
       Court staff that you’re dealing with, and you’re following through with any
       treatment recommendations you’ve received so far.

       {¶11} After the conclusion of the plea hearing, the trial court issued a journal entry

indicating that it had accepted White’s guilty plea and that it would hold the plea in abeyance

pending its ruling on the motion for ILC.
                                                5


       {¶12} The parties appeared before the trial court again on February 7, 2018. At the

outset of the hearing, the trial court indicated that after reviewing the record, including the

eligibility report, it could not identify “any nexus between any addiction issues and the crimes

charged.” Defense counsel argued that White’s continued use of marijuana had negatively

impacted his decision making and that, through treatment, White was beginning to understand

the impact of drug use on his life. While the trial court acknowledged that White would be better

off if he refrained from smoking marijuana, it reiterated that it could not see any indication that

White was using marijuana on the night in question or that marijuana was a factor in the incident.

When defense counsel responded that a defendant need not be under the influence at the time of

the offense in order to qualify for ILC, the trial court stressed that there must be “some

connection” between drug use and the criminal conduct. Defense counsel maintained that White

would not have committed the crimes if it were not for his poor decision making that stemmed

from his “habitual use of marijuana.” The trial court ultimately denied the motion on the basis

that it was unable to find a connection between drug use and the crimes at issue in this case.2

The matter proceeded to sentencing.

                                           Discussion

       {¶13} In support of his assignment of error, White argues that the trial court erred when

it determined that he was not eligible for ILC. Specifically, White contends that the trial court

misinterpreted R.C. 2951.041(B)(6), which requires the trial court to find that “[t]he offender’s

drug usage * * * was a factor leading to the criminal offense with which the offender is charged

* * *.” White stresses that the statute merely requires that the offender’s drug addiction must be


2
  After the trial court denied the motion, defense counsel requested additional time to reach out
to White’s treatment provider to obtain information regarding the connection between marijuana
use and poor decision making. The trial court denied this request.
                                                 6


a factor leading to the offense, not that the offender was under the influence at the time of the

offense. White asserts on appeal that his drug addiction caused him to enter into a lifestyle that

was marred by poor choices, including engaging in the criminal conduct at issue in this case.

       {¶14} At the outset of our discussion, we note that it is apparent from the record that the

trial court may have deviated from the process set forth in R.C. 2951.041(A)-(C). While R.C.

2951.041(A) suggests that the trial court should determine whether an offender is eligible for

ILC prior to accepting a guilty plea, the trial court here accepted White’s guilty plea before

reviewing the eligibility report and making a determination regarding whether he was eligible.

On appeal, White does not argue that the trial court erred by accepting his guilty pleas prior to

determining whether he was eligible for ILC, nor does he argue that his conviction was not

knowing, intelligent, and voluntary.     Accordingly, our analysis will be limited to White’s

argument that the trial court erred in concluding that he was not eligible for the program. See

generally State v. Cebula, 11th Dist. Lake No. 2013-L-085, 2014-Ohio-3276, ¶ 16 (“[The

offender] has not waived the alleged error surrounding his ILC motion by pleading guilty.”).

       {¶15} A review of the record reveals that White cannot prevail on his argument. “It is

the appellant’s responsibility to ensure that the record on appeal contains all matters necessary to

allow the Court to resolve the issues on appeal.”        State v. Kubisen, 9th Dist. Lorain No.

18CA011256, 2018-Ohio-3833, ¶ 11, quoting State v. Mellott, 9th Dist. Wayne Nos. 16AP0081,

16AP0082, 2017-Ohio-7545, ¶ 6. When an appellant fails to provide a complete record to

facilitate appellate review, this Court must presume regularity in the trial court’s proceedings and

affirm. State v. Boatright, 9th Dist. Summit No. 28101, 2017-Ohio-5794, ¶ 46. At the February

7, 2018 hearing, the trial court indicated that it had relied on White’s ILC eligibility report. At

the conclusion of the sentencing hearing, defense counsel asked the trial court to “mark the
                                                 7


intervention report * * * for appellate review.” Unfortunately, the eligibility report was not filed

in the trial court record, nor was it made part of the appellate record. White, as the appellant in

this matter, was responsible for ensuring that his eligibility report was made part of the appellate

record. See Kubisen at ¶ 11. As the eligibility report has not been included in the appellate

record, we have no choice to but to presume regularity and affirm the trial court’s judgment.

       {¶16} The assignment of error is overruled.

                                                III.

       {¶17} White’s assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                         8


      Costs taxed to Appellant.




                                             DONNA J. CARR
                                             FOR THE COURT



TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

MICHAEL E. STEPANIK, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
