[Cite as State v. Roome, 2017-Ohio-4230.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            MADISON COUNTY




STATE OF OHIO,                                    :
                                                         CASE NO. CA2016-09-028
        Plaintiff-Appellee,                       :
                                                              OPINION
                                                  :            6/12/2017
   - vs -
                                                  :

SAMUEL D. ROOME,                                  :

        Defendant-Appellant.                      :



     CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                          Case No. CRI20160043



Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price and Nicholas A.
Adkins, 59 North Main Street, London, Ohio 43140, for plaintiff-appellee

Elizabeth N. Gaba, 1231 East Broad Street, Columbus, Ohio 43205, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Samuel D. Roome, appeals from his conviction in the

Madison County Court of Common Pleas for one count of trafficking in drugs. For the

reasons outlined below, we affirm.

        {¶ 2} On March 9, 2016, the Madison County Grand Jury returned an indictment

charging Roome with one count of trafficking in drugs in violation of R.C. 2925.03(A)(1), a

fifth-degree felony. The charge arose after Roome sold five Suboxone sublingual film strips
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to a confidential informant with the Madison County Drug Task Force.                  Roome was

subsequently arraigned on June 9, 2016.

       {¶ 3} On August 12, 2016, Roome filed a request for intervention in lieu of conviction

("ILC"). Several days later, on August 16, 2016, the state filed a memorandum in opposition,

wherein it stated that "requests for intervention in lieu of conviction are traditionally denied for

drug trafficking despite eligibility." The following day the trial court issued an entry denying

Roome's request for ILC that stated, in pertinent part: "Defendant's Motion for Intervention in

Lieu of Conviction is Overruled. Defendant is charged with Drug Trafficking."

       {¶ 4} On September 1, 2016, Roome filed a renewed request for ILC. The next day

the trial court once again denied Room's request for ILC. In so holding, the trial court stated:

               The Court acknowledges the Defendant has been charged with
               an offense which makes him statutorily eligible for Intervention in
               Lieu of Conviction. The Court, pursuant to its discretion granted
               in §2951.041(A)(1), rejects the Defendant's request without
               hearing.

       {¶ 5} On September 6, 2016, Roome entered a no contest plea to trafficking in drugs

as charged. Thereafter, the trial court sentenced Roome to two years of community control,

which included 60 days in jail, and ordered a suspended one-year prison term. The trial court

also ordered Roome to pay court costs. Roome now appeals, raising three assignments of

error for review.

       {¶ 6} In his first and second assignments of error, Roome argues the trial court erred

by denying his requests for ILC based on a "blanket policy of not considering ILC motions

from defendants with F5 drug trafficking charges, even though these defendants are eligible

for consideration by statute." According to Roome, this violated his due process and equal

protection rights as provided for by the United States and Ohio Constitutions.

       {¶ 7} ILC is a procedure governed by R.C. 2951.041. State v. Birch, 12th Dist. Butler

No. CA2010-10-256, 2012-Ohio-543, ¶ 28. Pursuant to that statute, if an offender is charged
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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).

However, even when an offender is eligible for ILC, the statute does not create a legal right to

ILC. State v. Crawford, 12th Dist. Fayette No. CA2012-10-034, 2013-Ohio-2280, ¶ 5. The

statute is "permissive in nature and provides that the trial court may, in its discretion, grant

the defendant an opportunity to participate in the early intervention in lieu of a sentence."

State v. Nealeigh, 2d Dist. Champaign No. 2010CA28, 2011-Ohio-1416, ¶ 9. Thus, ILC is

considered a privilege, not a right. Birch at ¶ 37.

       {¶ 8} A trial court's decision to deny an offender's request for ILC is reviewed under

an abuse of discretion standard. State v. Casto, 12th Dist. Clinton No. CA2008-08-033,

2009-Ohio-791, ¶ 12. An abuse of discretion is more than an error of law or judgment. State

v. Miller, 12th Dist. Butler No. CA2016-01-007, 2016-Ohio-7360, ¶ 7. Rather, it suggests the

"trial court's decision was unreasonable, arbitrary or unconscionable." State v. Perkins, 12th

Dist. Clinton No. CA2005-01-002, 2005-Ohio-6557, ¶ 8. A decision is unreasonable when it

is "unsupported by a sound reasoning process." State v. Abdullah, 10th Dist. Franklin No.

07AP-427, 2007-Ohio-7010, ¶ 16, citing AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).

       {¶ 9} As noted above, Roome argues the trial court has developed a "blanket policy"

not to consider any request for ILC when the eligible offender, like himself, was charged with

trafficking in drugs. According to Roome, this "policy" was exposed by the state's August 16,

2016 memorandum in opposition to his first request for ILC when the state noted that

"requests for intervention in lieu of conviction are traditionally denied for drug trafficking

despite eligibility," as well as the trial court's August 17, 2016 decision to deny Roome's

request for ILC when the trial court stated that "Defendant is charged with Drug Trafficking."
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       {¶ 10} After a thorough review of the record, we find Roome's claim the trial court has

developed a "blanket policy" not to consider any request for ILC when the eligible offender,

like himself, was charged with trafficking in drugs is nothing more than pure speculation that

is otherwise unsupported by the record. Contrary to Roome's claim, simply because the

state noted that "traditionally" such requests are denied does not prove the trial court has

developed that as its "policy." This is true even when that statement is read in conjunction

with the trial court's reference to the fact that "Defendant is charged with Drug Trafficking."

We find nothing about these statements demonstrates a "blanket policy" on behalf of the trial

court to summarily deny ILC to every offender charged with drug trafficking.

       {¶ 11} In so holding, we find it important to note the trial court's September 2, 2016

entry denying Roome's renewed request for ILC. Again, as the trial court stated:

              The Court acknowledges the Defendant has been charged with
              an offense which makes him statutorily eligible for Intervention in
              Lieu of Conviction. The Court, pursuant to its discretion granted
              in §2951.041(A)(1), rejects the Defendant's request without
              hearing.

The trial court, therefore, did not deny either of Roome's requests for ILC based on a "blanket

policy."   Instead, the trial court complied with the statutory language found in R.C.

2951.041(A)(1) and exercised its discretion to deny Roome's requests for ILC. This does not

constitute an abuse of discretion.      As noted above, ILC is a privilege, not a right.

Accordingly, finding no merit to any of the arguments raised by Roome as part of his first and

second assignments of error, Roome's first and second assignments of error are overruled.

       {¶ 12} In his third assignment of error, Roome argues the trial court erred by failing to

properly record the plea hearing as required by Crim.R. 22, which states that "[i]n serious

offense cases all proceedings shall be recorded." The plea hearing proceedings, however,

were recorded, but were later discovered to be inaudible, thus making a transcript

unavailable. Under such circumstances, Roome could have utilized App.R. 9(C)(1), a rule
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that allows the appellant to prepare a statement of proceedings from the appellant's own

recollection when a transcript is unavailable. Roome did not prepare any such statement as

permitted by App.R. 9, nor did Roome provide this court with any specific claims as to how

the lack of the plea hearing transcript prejudiced him in any way. "[G]eneral allegations of

prejudice that the missing information could be vital to his appeal are not sufficient to show

material prejudice." State v. Bell, 12th Dist. Butler No. CA99-07-122, 2001 Ohio App.LEXIS

1915, *16 (Apr. 30, 2001). Roome's third assignment of error is therefore without merit and

overruled.

       {¶ 13} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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