[Cite as State v. Greathouse, 2016-Ohio-1350.]


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

STATE OF OHIO                                          C.A. No.      15CA0024-M

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
KIMBERLY L. GREATHOUSE                                 COURT OF COMMON PLEAS
                                                       COUNTY OF MEDINA, OHIO
        Appellee                                       CASE No.   14CR0570

                                 DECISION AND JOURNAL ENTRY

Dated: March 31, 2016



        MOORE, Judge.

        {¶1}     Plaintiff-Appellant the State of Ohio appeals from the entry of the Medina County

Court of Common Pleas which determined that Defendant-Appellee Kimberly L. Greathouse

was eligible to participate in intervention in lieu of conviction (“ILC”). We reverse.

                                                  I.

        {¶2}     Ms. Greathouse was indicted on one count of theft of a credit card, a felony of the

fifth degree, in violation of R.C. 2913.02(A)(1). In December 2014, Ms. Greathouse moved for

admission into ILC. An initial hearing was held, at which time the trial court referred Ms.

Greathouse to the probation department for an assessment and requested additional briefing.

        {¶3}     In February 2015, Ms. Greathouse filed a brief in support of her motion. There

she acknowledged that she previously pleaded guilty to two non-violent felony charges in

Summit County and, at the time of the motion, was on ILC for those charges. She maintained

that, even though she had pleaded guilty, she had not been adjudicated guilty in the Summit
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County case because, if she successfully completed the ILC program, the charges would be

dismissed. Further, she asserted that, because she had not yet completed an ILC program, she

had not been “through” an ILC program as contemplated by R.C. 2951.041(B)(1). Therefore,

Ms. Greathouse maintained she was eligible for ILC. As evidence, she attached the following

documents to her brief: a copy of the order finding her eligible for ILC and accepting her guilty

plea in the Summit County case, a copy of her indictment in the Summit County case, and a copy

of a letter from a counselor evidencing Ms. Greathouse’s participation in ILC.

       {¶4}    The State filed a motion in opposition to Ms. Greathouse’s motion for ILC. The

State argued that, due to Ms. Greathouse’s prior guilty pleas to non-violent felonies, she was

only eligible for ILC if the State recommended her participation and the State would not do so.

Subsequently, Ms. Greathouse filed a supplemental brief in support of her motion for ILC and

cited to a Second District case.

       {¶5}    Ultimately, the trial court issued an entry finding Ms. Greathouse eligible for ILC.

At a hearing several days later, the State objected to the trial court’s eligibility determination and

asked that the indictment in the Summit County case and the ILC assessment be made exhibits.

Thereafter, the State filed a motion for leave to appeal pursuant to R.C. 2945.67(A) and App.R.

5(C), which this Court granted. The State has raised a single assignment of error for our review.

                                                 II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN FINDING [MS. GREATHOUSE] ELIGIBLE
       FOR INTERVENTION IN LIEU OF CONVICTION UNDER R.C.
       2951.041(B)(1) WHEN SHE HAS PREVIOUSLY BEEN CONVICTED OF OR
       PLEADED GUILTY TO A FELONY AND THE STATE DID NOT
       RECOMMEND THAT [MS. GREATHOUSE] BE FOUND ELIGIBLE FOR
       PARTICIPATION IN INTERVENTION.
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       {¶6}    The State argues in its sole assignment of error that the trial court erred in finding

Ms. Greathouse eligible for ILC under R.C. 2951.041(B)(1). We agree.

       {¶7}    “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). “R.C. 2951.041(B) lists the criteria that a criminal

defendant must meet to be eligible for ILC. ‘If an offender satisfies all of the statutory eligibility

requirements for intervention, 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.

       {¶8}    Here, the State challenges the trial court’s application and interpretation of R.C.

2951.041(B)(1). “This Court applies a de novo standard of review to an appeal from a trial

court’s interpretation and application of a statute.” State v. Chandler, 9th Dist. Lorain No.

14CA010676, 2016-Ohio-164, ¶ 7, quoting State v. Massien, 9th Dist. Summit No. 24369, 2009-

Ohio-1521, ¶ 5. “[W]here the language of a statute is clear and unambiguous, it is the duty of the

court to enforce the statute as written, making neither additions to the statute nor subtractions

therefrom. If it is ambiguous, we must then interpret the statute to determine the General

Assembly’s intent. If it is not ambiguous, then we need not interpret it; we must simply apply

it.” (Internal quotation and citations omitted.) Chandler at ¶ 7, quoting Massien, 2009-Ohio-

1521, at ¶ 5. “In determining whether a statute is ambiguous, we objectively and thoroughly

examine the statute, consider each provision in context, and apply ordinary rules of grammar.”

Chandler at ¶ 7, quoting Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-

2440, ¶ 25.
                                                  4


       {¶9}    R.C. 2951.041(B)(1) states in pertinent part:

       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
       offense of violence or previously has been convicted of or pleaded guilty to any
       felony that is not an offense of violence and the prosecuting attorney recommends
       that the offender be found eligible for participation in intervention in lieu of
       treatment under this section, 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 a community control
       sanction on the offender under division (B)(2) of section 2929.13 of the Revised
       Code or with a misdemeanor.

(Emphasis added.)

       {¶10} There appears to be no dispute that Ms. Greathouse previously pleaded guilty to a

felony that was not an offense of violence. Thus, the plain language of the statute required that,

in order to be eligible, the State had to recommend that Ms. Greathouse participate in ILC.

There is also no dispute that the State did not do so.

       {¶11} Below, Ms. Greathouse argued that the guilty plea in the Summit County case did

not constitute an adjudication of guilt because, if she successfully completed the ILC program in

the Summit County case, the charges would be dismissed. See R.C. 2951.041(E). Thus, she

maintained that she was eligible to participate. We are not persuaded by this argument. The

plain language of the statute requires the prosecution’s recommendation if the offender has

previously “pleaded guilty to” a felony that is not an offense of violence. R.C. 2951.041(B)(1).

Ms. Greathouse previously pleaded guilty to a felony that was not an offense of violence.

Accordingly, she has not convinced us that she could participate in ILC in this case absent the

State’s recommendation.

       {¶12} We note that the trial court’s analysis focused on a different aspect of R.C.

2951.041(B)(1). However, because we conclude that Ms. Greathouse is ineligible for ILC for
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the reasons discussed above, and it would be necessary for her to satisfy all of the requirements

in order to participate, we need not evaluate the merits of the trial court’s reasoning.

       {¶13} The State’s sole assignment of error is sustained.

                                                 III.

       {¶14} The judgment of the Medina County Court of Common Pleas is reversed.

                                                                                 Judgment reversed,
                                                                                and cause remanded.




       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 Medina, 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.

       Costs taxed to Appellee.




                                                        CARLA MOORE
                                                        FOR THE COURT


HENSAL, P. J.
SCHAFER, J.
CONCUR.
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APPEARANCES:

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellant.

THOMAS REIN, Attorney at Law, for Appellee.
