[Cite as State v. Alexander, 2017-Ohio-8828.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 17 CA 0039
ADAM ALEXANDER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 17 CR 0361


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         November 30, 2017



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

WILLIAM C. HAES                                 KEVIN GALL
PROSECUTING ATTORNEY                            BURKETT & SANDERSON, INC.
PAULA M. SAWYERS                                73 North Sixth Street
ASSISTANT PROSECUTOR                            Newark, Ohio 43055
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 17 CA 0039                                                       2

Wise, J.

       {¶1}    Defendant-Appellant Adam Alexander appeals his conviction and sentence

on one count of Trafficking in Marijuana entered in the Licking County Court of Common

Pleas following a plea of guilty to a Bill of Information.

       {¶2}    Plaintiff-appellee is the State of Ohio.

                             STATEMENT OF THE FACTS AND CASE

       {¶3}    On June 6, 2017, Appellant, pursuant to a Bill of Information, entered a

guilty plea to one count of Trafficking in Marijuana, a felony of the fifth degree, with two

forfeiture specifications.

       {¶4}    The following limited statement of the facts was presented by the state of

Ohio at the plea hearing:

               Between the dates of June 3rd, 2016 and June 8th, 2016, the

       Defendant, along with others, did knowingly transport marijuana with

       knowledge that it was being prepared for sale and distribution. Specifically,

       the Defendant and another individual met at Dawes Arboretum on State

       Route 13 in Licking County, Ohio, and picked up a shipment of marijuana.

       They then took the marijuana and handed it off to others so that it could be

       sold. On June 8th, 2016, while conducting an investigation into the trafficking

       in marijuana, law enforcement personnel with the Central Ohio Drug

       Enforcement Task Force observed the Defendant commit a traffic violation

       and initiated a traffic stop on Cherry Valley Road in Newark, Licking County,

       Ohio.
Licking County, Case No. 17 CA 0039                                                       3


                 Upon approaching the vehicle, law enforcement personnel

         immediately noticed marijuana shake about the vehicle. The personnel

         asked the Defendant if he would consent to a search of his person and the

         Defendant did consent. Detectives located a crumpled piece of paper in his

         pants pocket which upon review was determined to be an "O" list.1

                 …

                 In addition, thereafter the detectives conducted a probable cause

         search of the vehicle and located $2,461.00 in cash.

                 The Defendant was interviewed after being Mirandized. He admitted

         that the paper was, in fact, an "O" list and that the money in the car was

         money that he had made from selling marijuana.

                 During the course of the Defendant's interview he further

         acknowledged that another individual who had participated in the trafficking

         operation used a black 2005 Audi Quattro, vehicle identification number

         WAULC68E65A042713. When this individual discovered that law

         enforcement personnel were investigation the trafficking operation, he

         signed the vehicle over to the Defendant." (T. at 12-14).

         {¶5}    At the plea hearing, the trial court considered Appellant’s motion for

Intervention In-Lieu of Conviction (ILC), filed on April 28, 2017, and denied the same.

         {¶6}    The trial court then sentenced Appellant to a three-year term of Community

Control.

         {¶7}    Appellant now appeals, raising the following assignment of error on appeal:



1   The record does not contain a definition for “O” list.
Licking County, Case No. 17 CA 0039                                                        4


                                   ASSIGNMENT OF ERROR

       {¶8}   “I. THE TRIAL JUDGE ABUSED ITS DISCRETION IN OVERRULING THE

DEFENDANT’S MOTION FOR INTERVENTION IN LIEU OF CONVICTION BY

REQUIRING THAT THE DEFENDANT SATISFY A MORE STRINGENT CONDITION

THAN THOSE CONTAINED IN R.C. 2951.041.”

                                                 I.

       {¶9}   In his sole Assignment of Error, Appellant argues that the trial court’s denial

of his motion was an abuse of discretion. We disagree.

       {¶10} Intervention in Lieu of Conviction (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 Ohio St.3d 204, 2010–Ohio–1864, 926

N.E.2d 1282, ¶ 9.

       {¶11} “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.
Licking County, Case No. 17 CA 0039                                                       5


       {¶12} 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.

       {¶13} R.C. §2951.041 provides:

              (A)(1) If 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 offender's criminal behavior, the court may accept,

        prior to the entry of a guilty plea, the offender's request for intervention in

        lieu of conviction. The request shall include a waiver of the defendant's

        right to a speedy trial, the preliminary hearing, the time period within

        which the grand jury may consider an indictment against the offender,

        and arraignment, unless the hearing, indictment, or arraignment has

        already occurred. 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 intervention in lieu of conviction 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
Licking County, Case No. 17 CA 0039                                                      6


       for the purpose of determining the offender's eligibility for intervention in

       lieu of conviction and recommending an appropriate intervention plan.

             (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, 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 sentence

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

       misdemeanor.

             (2) The offense is not a felony of the first, second, or third degree,

       is not an offense of violence, is not a violation of division (A)(1) or (2) of

       section 2903.06 of the Revised Code, is not a violation of division (A)(1)

       of section 2903.08 of the Revised Code, is not a violation of division (A)

       of section 4511.19 of the Revised Code or a municipal ordinance that is

       substantially similar to that division, and is not an offense for which a

       sentencing court is required to impose a mandatory prison term, a

       mandatory term of local incarceration, or a mandatory term of

       imprisonment in a jail

             (3) The offender is not charged with a violation of section 2925.02,

       2925.03, 2925.04, or 2925.06 of the Revised Code and is not charged

       with a violation of section 2925.11 of the Revised Code that is a felony of

       the first, second, or third degree.
Licking County, Case No. 17 CA 0039                                                        7


             (4) The offender is not charged with a violation of section 2925.11

       of the Revised Code that is a felony of the fourth degree, or the offender

       is charged with a violation of that section that is a felony of the fourth

       degree and the prosecutor in the case has recommended that the

       offender be classified as being eligible for intervention in lieu of conviction

       under this section.

             (5) The offender has been assessed by an appropriately licensed

       provider, certified facility, or licensed and credentialed professional,

       including, but not limited to, a program licensed by the department of

       alcohol and drug addiction services pursuant to section 3793.11 of the

       Revised Code, a program certified by that department pursuant to section

       3793.06 of the Revised Code, a public or private hospital, the United

       States department of veterans affairs, another appropriate agency of the

       government of the United States, or a licensed physician, psychiatrist,

       psychologist, independent social worker, professional counselor, or

       chemical dependency counselor for the purpose of determining the

       offender's   eligibility   for   intervention   in   lieu   of   conviction   and

       recommending an appropriate intervention plan.

             (6) The offender's drug or alcohol usage 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.
Licking County, Case No. 17 CA 0039                                                       8


              (7) The alleged victim of the offense was not sixty-five years of age

       or older, permanently and totally disabled, under thirteen years of age, or

       a peace officer engaged in the officer's official duties at the time of the

       alleged offense.

              (8) If the offender is charged with a violation of section 2925.24 of

       the Revised Code, the alleged violation did not result in physical harm to

       any person, and the offender previously has not been treated for drug

       abuse.

              (9) The offender is willing to comply with all terms and conditions

       imposed by the court pursuant to division (D) of this section.

       {¶14} 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. State v. Schmidt, 149 Ohio App.3d 89, 2002-Ohio-3923, 776

N.E.2d 113. 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. An abuse of discretion involves more than an error of judgment; it connotes

an attitude on the part of the court that is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, 1141(1983).

       {¶15} While the trial court did not provide any reasons in support of this finding

in its judgment entry, a review of the hearing transcript reveals the trial court based its

denial on R.C. §2951.041(B)(6), finding that it would demean the seriousness of the
Licking County, Case No. 17 CA 0039                                                          9


offense. It is apparent from the transcript of the hearing that the trial court did not believe

Appellant was a good candidate for Intervention:

              And, Mr. Alexander, I would find that It would demean the

       seriousness of your offense here, at least the offense you were arrested

       on, if not the offense that was - - as it’s been reduced in your bill of

       information. It’s not a - - guy that’s having people over to his house and

       selling them marijuana. It’s somebody that’s meeting at a remote location

       to accept bulk amounts of marijuana from other people. You’re engaged

       in organized criminal activity. And, on that basis, I would deny your request

       for intervention in lieu of conviction here today.

       {¶16} Tr. at 25-26.

       {¶17} Based on the foregoing, we do not find that the trial court abused its

discretion in denying Appellant’s request for intervention in lieu of conviction.

       {¶18} Appellant’s sole Assignment of Error is overruled.

       {¶19} Accordingly, the judgment of the Court of Common Pleas, Licking County,

Ohio, is affirmed.


By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.


JWW/d 1116
