[Cite as State v. Branch, 2013-Ohio-2350.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :            C.A. CASE NO.    25261

v.                                                   :            T.C. NO.   12CR174

DANIELLE N. BRANCH                                   :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                             ..........

                                             OPINION

                         Rendered on the       7th       day of      June    , 2013.

                                             ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

SUSAN F. SOUTHER, Atty. Reg. No. 0058529, Assistant Public Defender, 117 S. Main
Street, Suite 400, Dayton, Ohio 45422
        Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.

                 {¶ 1} After the trial court denied her motion for intervention in lieu of
                                                                                            2

conviction (ILC), Danielle N. Branch pled no contest to grand theft in the amount of $7,500

or more, but less than $150,000, a fourth-degree felony. The trial court sentenced Branch to

community control for up to five years. Branch appeals from the trial court’s judgment,

claiming that the court erred in denying her motion for ILC. For the following reasons, the

trial court’s judgment will be affirmed.

       {¶ 2}    According to the ILC eligibility report, Branch’s mother was the full-time

housekeeper for Sam and Tamera Caras. In November and December 2011, Branch, then

22 years old, was also employed by the Carases to provide extra help over the holiday

season. During that time, five items of jewelry were found to be missing from the home.

The Carases told their full-time housekeeper about the thefts, and the housekeeper

confronted her daughter, Branch, who admitted to taking the jewelry. Branch later admitted

to the police that she stole three rings from Mrs. Caras, but she denied taking the other two

pieces of jewelry. Branch and her boyfriend sold two of the rings at a pawn shop. Branch

admitted that they bought heroin with the money that they received.

       {¶ 3}    According to the Carases, the total value of all of the missing jewelry was

$23,853. The value of the jewelry that Branch admitted to taking was $14,425.

       {¶ 4}    In March 2012, Branch was indicted on grand theft of miscellaneous jewelry

having a value of $7,500 or more, but less than $150,000, in violation of R.C.

2913.02(A)(1). On April 19, 2012, Branch filed a motion for ILC, stating that her drug use

was a factor in the commission of the offense. Although we find no entry in the record

referring the matter for an assessment of Branch’s eligibility for ILC, the ILC eligibility

report reflects that the case was referred for an assessment on April 19, 2012, and the report
                                                                                               3

was completed on May 15 or 16. The assessment concluded that Branch was statutorily

eligible for ILC.

       {¶ 5}    On May 17, 2012, Branch came before the court with different counsel (both

were from the same law office). Counsel asked the court for a one-week continuance,

stating that she (counsel) had “just met her [Branch] today” and that counsel had not talked

with Branch about the ILC report. Without addressing the request for a continuance, the

court orally denied the motion for ILC, finding that ILC would demean the seriousness of the

offense. The court provided three reasons for its ruling: (1) the amount of the offense was

“allegedly $28,853 [sic],” (2) the offense allegedly involved “essentially a violation of trust,”

as the defendant was “permitted to be in the victim’s house to clean house and exploiting

that trust and stealing these items,” and (3) the impact of the offense on the victim. The

court set a status conference for the following week.

       {¶ 6}    On May 24, 2012, the court held a hearing at which Branch and several other

individuals entered pleas in their respective cases. The trial court stated that, unlike some

of the other individuals there, who would be granted ILC, Branch would be entering a no

contest plea to grand theft, with an agreement that she would be sentenced to community

control. The court noted that it had “previously denied Branch’s motion for ILC for reasons

the court placed into the record last time she was in court.”

       {¶ 7}        Prior to taking Branch’s plea, defense counsel and the trial court had the

following exchange:

       [DEFENSE COUNSEL]: * * * I just want to, for the record, you are denying

       her hearing on her motion for intervention in lieu of conviction.
[Cite as State v. Branch, 2013-Ohio-2350.]
         THE COURT: Right. And you mentioned that in chambers and the ILC

         statute under House Bill 86 specifically explicitly states that the court may

         deny an ILC without a hearing so I know you’re requesting a hearing but the

         court denies that request.

         [DEFENSE COUNSEL]: Correct.

The trial court then accepted and found Branch guilty on her no contest plea, but it did not

sentence her, because the parties disagreed on the amount of restitution.                                             The court

scheduled a restitution hearing for June 14. On June 14, 2012, the parties stated that they

had reached an agreement that Branch would pay restitution of $14,475.1

         {¶ 8}         The trial court sentenced Branch to community control sanctions, which

included intensive supervision, restitution of $14,475, a drug or alcohol assessment and

successful completion of any recommended treatment, attending the probation department’s

theft clinic, and completion of the drug court program.

         {¶ 9}       In her sole assignment of error, Branch claims that “[t]he trial court abused

its discretion when it denied appellant’s motion for intervention in lieu of conviction.”

         {¶ 10} 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, mental illness, or being a person with an

                    intellectual disability was a factor leading to the criminal

                    behavior. See R.C. 2951.041(A); See State v. Massien, 125

             1
                 The record does not explain the discrepancy between the value of the three rings that Branch admitted to stealing, as
   relayed in the ILC eligibility report ($14,425), and the agreed amount of restitution ($14,475).
                                                                                             5

                Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, ¶ 9.

                       “In 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.”

                Massien at ¶ 10, quoting State v. Shoaf, 140 Ohio App.3d 75,

                77, 746 N.E.2d 674 (10th Dist.2000) (referring to a previous,

                but similar, version of R.C. 2951.041). ILC is not designed to

                be punishment, but rather an opportunity for certain offenders

                to receive help for their dependence without the ramifications

                of a felony conviction. Id.

       {¶ 11}     The trial court may reject an offender’s request for ILC without a hearing.

R.C. 2951.041(A)(1). However, if the court elects to consider an offender’s request, the

court must conduct a hearing to determine whether the offender is statutorily eligible for ILC

and must stay all criminal proceedings pending the outcome of the hearing. Id. If the court

schedules a hearing, the court must order an assessment of the offender for the purpose of

determining the offender’s eligibility for ILC and recommending an appropriate intervention

plan. Id.

       {¶ 12}     We find the language of R.C. 2951.041(A)(1) to be inartful, as a trial court,

by definition, “considers” an offender’s request for ILC by making any ruling. But under

R.C. 2951.041(A)(1), the court must hold a hearing and order an assessment when it elects
                                                                                                6

to “consider” an offender’s request for ILC. One reading is that a court can reject an ILC

motion out of hand without even “considering” statutory eligibility or discretionary factors.

However, we have held that a blanket policy to deny ILC motions is error. E.g., State v.

Nealeigh, 2d Dist. Champaign No. 2010CA28, 2011-Ohio-1416, ¶ 28, citing State v. Rice,

180 Ohio App.3d 599, 2009-Ohio-162, 906 N.E.2d 506 (2d Dist.). Another reading is that

if a defendant is statutorily eligible (i.e., none of the factors in R.C. 2951.041(B) makes the

applicant ineligible) and the trial court “considers” the eligible offender’s being granted ILC,

the court must order an assessment and hold a hearing. The statute also leaves unanswered

what is necessary to constitute a hearing; is it a full evidentiary hearing, or the opportunity to

be heard, similar to allocution?

       {¶ 13}    The trial court’s decision not to have a hearing to determine a defendant’s

eligibility is significant, because such a decision does not affect a substantial right; the

defendant has no legal right to a hearing. State v. Stanton, 2d Dist. Montgomery No. 25298,

2013-Ohio-1825, ¶ 13, following Rice. We have thus held that the trial court’s denial of

ILC without a hearing is not subject to appellate review (although a plea or finding of guilty

thereafter is appealable). Id.

       {¶ 14}    Prior to Branch’s plea, her attorney confirmed with the trial court that it

was denying her motion without a hearing, even though the court obtained an ILC eligibility

report and then denied Branch’s motion based on an eligibility requirement. However,

Branch does not argue that the trial court erred in denying her a hearing when determining

her eligibility. Given the particular circumstances and the arguments presented in this case,

we need not resolve any ambiguity in R.C. 2951.041(A)(1).                Contrast Stanton (no
                                                                                               7

assessment was ordered and the court did not hold a hearing, precluding appellate review).

       {¶ 15}    In order for an offender to be statutorily eligible for ILC, the trial court

must find that all ten of the criteria set forth in R.C. 2951.041(B) are met. Of relevance to

Branch, R.C. 2951.041(B)(6) provides, as a prerequisite for ILC eligibility, that “[t]he

offender’s drug usage, alcohol usage, mental illness, or intellectual disability, whichever is

applicable, was a factor leading to the criminal offense with which the offender is charged,

intervention in lieu of conviction would not demean the seriousness of the offense, and

intervention would substantially reduce the likelihood of any future criminal activity.”

(Emphasis added.)      “Eligibility determinations are matters of law subject to de novo

review.” State v. Baker, 2d Dist. Montgomery No. 24510, 2012-Ohio-729, ¶ 8.

       {¶ 16}    The trial court determined that ILC would demean the seriousness of

Branch’s grand theft offense, citing the value of the items stolen, the violation of trust

involved in her offense, and the impact that the offense had on the victims. In reaching its

conclusions, the court considered the ILC report, which detailed how Branch had admittedly

stolen three items of jewelry valued at over $14,000, that she was accused of stealing two

other items of jewelry worth approximately $9,000, and the impact on the victim and the

circumstances of the offense.

       {¶ 17} Upon review of the record, we disagree with the trial court’s determination

that ILC would, as a matter of law, demean the seriousness of the offense in Branch’s case.

First, the trial court suggested that Branch held a “position of trust” with the Carases and that

she betrayed that trust. In the context of sentencing, “position of trust” is a term of art.

The Ohio Supreme Court clarified that both public and private persons can hold a position of
                                                                                               8

trust, but it rejected the contention that a person is “categorically ineligible for ILC based

upon a finding that the offender, as a private individual, breached any moral, ethical, or filial

duty.” Massien at ¶ 33. The court clarified that a private person holds a position of trust

when he or she occupies “a special relationship of trust and confidence equivalent to a

fiduciary relationship” and that such person is ineligible for ILC when the offense relates to

that fiduciary relationship. Id. at ¶ 34. Branch did not hold a position of trust with the

Carases, and she is not ineligible for ILC on that basis.

       {¶ 18} Nor do we find that the Carases’ response to Branch’s offense indicated that

ILC would demean the seriousness of the offense. Mrs. Caras was understandably angry

and upset about how this crime occurred and the loss of her jewelry, which she stated was

irreplaceable, and the Carases decided to install a security system at their home. However,

the Carases’ reaction was not atypical for such an offense, and fortunately there is no

indication that the impact on them was unusually serious.

       {¶ 19} The trial court also emphasized the value of the items stolen. The ILC

report indicates that Branch stole five pieces of jewelry from her employer’s home, which

were collectively valued over $20,000. The three items she admitted to stealing were

valued over $14,000. Although we agree that the monetary value involved in the offense

may be relevant to whether an offender should be placed on ILC, we do not believe that the

amount in this case necessarily precludes Branch from eligibility. See State v. Drake, 192

Ohio App.3d 216, 2011-Ohio-25, 948 N.E.2d 965 (2d Dist.) (nonsupport of dependents

arrearage of $13,333.51); State v. Sorrell, 187 Ohio App.3d 286, 2010-Ohio-1618, 931

N.E.2d 1135 (2d Dist.) (nonsupport arrearage of $27,748).
                                                                                             9

       {¶ 20}    Even when an offender satisfies all of the statutory eligibility requirements

for ILC, the trial court has discretion to determine whether a particular offender is a good

candidate for intervention. Massien at ¶ 11. The decision whether to grant a motion for

ILC lies within the trial court’s sound discretion, and an appellate court will not reverse the

trial court’s ruling absent an abuse of that discretion. State v. Adkins, 2d Dist. Miami No.

2011 CA 28, 2012-Ohio-4744, ¶ 16.

       {¶ 21} Although we disagree with the trial court’s legal conclusion that Branch was

not eligible for ILC because ILC would demean the seriousness of the offense, we

nevertheless find that the trial court did not abuse its discretion in denying Branch’s motion

for ILC. While Branch did not occupy a “position of trust” with the Carases, the trial court

reasonably considered that Branch had been allowed into the Carases’ home to provide

additional help during the holiday season, and that Branch “exploited” their trust by stealing

five irreplaceable items of jewelry of substantial value. The ILC report further reflected that

Branch’s actions caused her mother to lose her job.

       {¶ 22}    We also note that the ILC report indicated that Branch had new

misdemeanor charges in May 2012, resulting in the revocation of her conditional own

recognizance bond in this case on May 15, 2012. (A COR bond was again set a few days

later.) At the time of the ILC report, Branch was no longer living with her mother, and her

residence was unknown. Branch missed a Crisis Care assessment and had not followed

through with rescheduling the assessment.

       {¶ 23} In summary, upon review of the record, the trial court did not abuse its
                                                                                                                                 10

discretion in denying Branch’s motion for ILC.2 The assignment of error is overruled.

         {¶ 24} The trial court’s judgment will be affirmed.

                                                         ..........

DONOVAN, J. concurs in judgment only.

WELBAUM, J., concurring.

         {¶ 25} I agree with the judgment of the court but affirm for different reasons.

There are potentially three decision points for the trial judge in the ILC law. Remarkably,

there is a different level of appellate review for each. I believe the trial court decided the

request at the first stage. It appears Judge Froelich affirms based on evaluation of the third

stage.

         {¶ 26} The first decision is whether the trial court will accept or deny a request for

intervention under 2951.041(A)(1) without a hearing. As Judge Froelich noted, if the trial

court denies the request at this stage it is not subject to appellate review absent a showing

that the court made the decision based upon a blanket policy that any and all requests are

denied without consideration. State v. Rice, 180 Ohio App.3d 599, 2009-Ohio-162, 906

N.E. 2d 506 (2d Dist.); State v. Nealeigh, 2d Dist. Champaign No. 2010CA28,

2011-Ohio-1416. In Rice, we found that

                    * * * abuse of discretion in denying a defendant’s 2951.041 motion

         without a hearing is harmless error that an appellate court is charged by

         Crim.R.52(A) to disregard, because the defendant could have suffered no


             2
                Although not relevant to our analysis, the trial court’s docket reflects that Branch’s community control in this case
   was revoked on April 19, 2013, and she was sentenced to seven months in prison.
                                                                                                11

       prejudice to a legal right enforced and protected by law as a result.

               * * * [B]ecause that section creates not a right of relief but instead a

       privilege that the court possesses “considerable discretion” to deny, * * * we

       find that the denial of defendant’s request was harmless error and therefore

       not a basis on which to reverse the judgment of conviction from which the

       defendant’s appeal was taken.

Rice at ¶ 14-15.

       {¶ 27} If the trial court actually considers the request at the first stage, a denial will

be affirmed.

       {¶ 28} The second decision point occurs if the trial court elects to consider the

request. After the mandatory hearing and consideration of the assessment the court will

determine whether all ten of the criteria in 2951.041(B) are met. At this stage, the trial

court’s eligibility determinations are subject to de novo review on appeal. Here, Judge

Froelich disagreed with several of the trial court’s determinations. In my view, the trial

court did not err in its findings. If the defendant does not meet all ten criteria the trial court

shall deny the request.

       {¶ 29} Thirdly, in the event the defendant satisfies all of the criteria, the court then

must decide whether to grant the offender ILC. Appellate review of this decision is by an

abuse of discretion standard. Consequently, even if an offender is successful in persuading

the court that all eligibility requirements have been satisfied, the trial court has the discretion

to deny the ILC request.

       {¶ 30} It appears Judge Froelich affirms because he finds that at the third decision
                                                                                                  12

point, the trial court did not abuse its discretion by denying the request even though Judge

Froelich found the defendant met all statutory criteria. However, in my view, the trial court

denied the request at the first decision point. Since the trial court did not make its initial

decision based on a blanket policy to deny all ILC requests, I affirm the trial court.

                                                              .   .   .   .   .   .   .   .   .    .



Copies mailed to:

Michele D. Phipps
Susan F. Souther
Hon. Dennis J. Langer
