[Cite as State v. Nealeigh, 2011-Ohio-1416.]




            IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :    C.A. CASE NO. 2010CA28

vs.                                              :    T.C. CASE NO. 2010CR58

KRISTOPHER W. NEALEIGH                           :    (Criminal Appeal from
                                                       Common Pleas Court)
        Defendant-Appellant                      :

                                       . . . . . . . . .

                                           O P I N I O N

                    Rendered on the 25th day of March, 2011.

                                       . . . . . . . . .

Nick A. Selvaggio, Pros. Attorney; Richard L. Houghton, III, Asst.
Pros. Attorney, Atty. Reg. No.0055607, 200 North Main Street,
Urbana, OH 43078
     Attorney for Plaintiff-Appellee

Jose M. Lopez, Atty. Reg. No.0019580, 18 East Water Street, Troy,
OH 45373
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} On       or     about      June   28,   2009,   Defendant,   Kristopher

Nealeigh, Amber Fraley, and Mark Toney were all using heroin.

Defendant overdosed, requiring paramedics from the Urbana Fire

Department and Champaign County Sheriff’s deputies to respond to
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a call for emergency medical assistance.

     {¶ 2} Defendant was indicted on one count of possession of

heroin in violation of R.C. 2925.11(A), (C)(6)(a), a felony of

the fifth degree.        Just prior to the final pretrial hearing on

June 10, 2010, Defendant filed a motion for intervention in lieu

of conviction pursuant to R.C. 2951.041.           The trial court orally

denied Defendant’s motion, without a hearing.                     The court

subsequently journalized a written order denying the motion.

Thereafter, Defendant entered a plea of no contest to the heroin

possession charge and was found guilty.          The trial court sentenced

Defendant to three years of community control sanctions.

     {¶ 3} Defendant appealed to this court from his conviction

and sentence.       He challenges only the trial court’s decision

denying his request for intervention in lieu of conviction.

     ASSIGNMENT OF ERROR

     {¶ 4} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AS A

MATTER   OF   LAW   IN    DENYING   DEFENDANT-APPELLANT’S        MOTION   FOR

INTERVENTION IN LIEU OF CONVICTION BASED UPON A BLANKET POLICY

ADOPTED BY THE TRIAL COURT TO DENY ANY AND ALL SUCH MOTIONS.”

     {¶ 5} Defendant      argues    that   the   trial   court   abused   its

discretion in summarily denying his request for intervention in

lieu of conviction, without a hearing, based upon a blanket policy

the trial court has that any and all such motions will be denied.
                                                                       3

 Defendant claims that there is nothing in the record that

demonstrates he does not meet all of the eligibility requirements

in R.C. 2951.041(B) for intervention in lieu of conviction.

     {¶ 6} We previously considered and rejected this same claim

involving this same trial court.         In State v. Rice, 180 App.3d

599, 2009-Ohio-162, this court stated:

     {¶ 7} “Pursuant to R.C. 2951.041(A)(1), a court may deny a

request for intervention in lieu of conviction without a hearing.

State v. Leisten, 166 Ohio App.3d 805, 2006-Ohio-2362, 853 N.E.2d

673. If the court instead elects to consider the request, the court

must conduct a hearing to determine whether the offender meets

all of the eligibility requirements in R.C. 2951.041(B) for

intervention in lieu of conviction. Id.        The decision whether to

grant a motion for intervention in lieu of conviction lies within

the trial court's sound discretion. Id.; State v. Lindberg, Greene

App. No. 2005-CA-59, 2006-Ohio-1429, 2006 WL 759655. This court

has held that even if an offender satisfies all the eligibility

requirements, the trial court has discretion to determine whether

the particular offender is a candidate for intervention in lieu

of   conviction.   State       v.   Schmidt,   149   Ohio   App.3d   89,

2002-Ohio-3923, 776 N.E.2d 113.”        Id., at ¶10.

     {¶ 8} “*      *       *

     {¶ 9} “Crim.R. 52(A) defines harmless error and provides: ‘Any
                                                                              4

error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded.’ ‘A substantial right

is, in effect, a legal right that is enforced and protected by

law.’ State v. Coffman (2001), 91 Ohio St.3d 125, 127, 742 N.E.2d

644. ‘R.C. 2951.041 does not create a legal right to intervention

in lieu of conviction. Rather, 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. Dempsey, Cuyahoga

App. No. 82154, 2003-Ohio-2579, 2003 WL 21154170, ¶9. Therefore,

abuse of discretion in denying a defendant's R.C. 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 prejudice to a legal right enforced and protected

by law as a result.”       Id at ¶14.

      {¶ 10} At the pretrial hearing held on June 10, 2010, the

following colloquy took place:

      {¶ 11} “THE COURT: Thank you.      Bailiff, could you obtain the

document?

      {¶ 12} “Revised Code Section 2951.041 provides, among other

things, that the Court may accept, prior to the entry of the guilty

plea,   the   offender’s    request     for    intervention      in   lieu   of

conviction.
                                                                     5

     {¶ 13} “Court does not accept the request.        Court will not

consider Defendant for intervention in lieu of conviction.”       (T.

2-3).

     {¶ 14}   “*     *       *

     {¶ 15} “The Court is declining to grant the request without

establishing a hearing for that motion.        The Court believes it

is following the statutory procedure in making that distinction.

 If you want that to be a matter of record, then your client will

need to waive his right to confidentiality.         I’m not sure what

choice you’ll make on that.

     {¶ 16} “MR. LOPEZ: Sir, I’d be happy to do that.     And I don’t

mean to be argumentative with the Court.         And I recognize that

the Court says it may consider.       But I’m sort of at a loss here

given the fact there was no inquiry whether he’s a suitable

candidate other than the motion was filed and the Court simply

turning it down without making inquiry.

     {¶ 17} “THE COURT: 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 eligibility

in all the other matters.

     {¶ 18} “And we’re not having a hearing to do that because the

Court is proceeding under the statute to not accept the request

and not to conduct the hearing.
                                                                    6

     {¶ 19} “The Court would note for the record that the Court

believes that there are two codefendants in the case.      Two other

individuals who are codefendants.        Making a total of three

codefendants.” (T. 4-5).

     {¶ 20} At the sentencing hearing Defendant asked the trial court

to reconsider his request for intervention in lieu of conviction.

 The trial court stated:

     {¶ 21} “Your lawyer has correctly stated the situation when

he says he’s not aware of any factors that disqualify you from

treatment or intervention in lieu of punishment.     By that I mean,

that the record appears to show that you’re a first time offender.

 I don’t believe that intervention in lieu of conviction process

necessarily applies to the present circumstances.      Heroin is an

insidious drug.   Many people with the best of intentions are not

able to break free from the hold that the drug has for a continued

period of time.

     {¶ 22} “Court believes that the extent of your usage and the

serious consequences that you’ve suffered as a result of that makes

it appropriate for a more extensive supervision to be involved.

 The number of people involved in the usage process, the length

of time involved in the usage process, and the gravity of the usage

process are all factors that were considered by the Court in

determining the nature of supervision that is going to be imposed
                                                                   7

here.    Those were also reasons why the Court would believe that

supervision or the treatment in lieu of conviction – correction

intervention in lieu of conviction is not appropriate in the present

case.”   (T. 16-17).

     {¶ 23} The trial court’s Journal Entry of Conviction and

Sentence states:

     {¶ 24} “REQUEST FOR INTERVENTION IN LIEU OF CONVICTION

     {¶ 25} “Counsel for Defendant asked the court to reconsider

the Defendant’s request for intervention in lieu of conviction.

 After listening to the request, the Court declined to change the

previous ruling.       The hearing is not a hearing to consider

intervention.   In explanation of the ruling the Court noted the

number of people involved in the substance abuse pattern, the period

of usage, the insidious nature of the drug involved, and the serious

consequences of this particular drug usage by the Defendant.    The

sum total of all these circumstances indicate to the Court a level

of concern that requires community control is a key element of

the rehabilitation of the Defendant.   The Court also believes that

intervention in lieu of conviction would demean the seriousness

of the offense.”

     {¶ 26} The record does not support Defendant’s claim that the

trial court refused Defendant’s request for intervention in lieu

of conviction based upon some blanket policy of denying all such
                                                                           8

requests, without regard to the facts and circumstances of the

particular case.      The court’s reasons for refusing Defendant’s

request   are   not   matters   that   would    exclude   Defendant    from

eligibility for intervention in lieu of conviction.               See: R.C.

2951.041(B).    Nevertheless, because R.C. 2951.041(A) creates not

a right of relief, but instead a privilege that the trial court

possesses    considerable   discretion     to    deny,    the    denial   of

Defendant’s request was, at worst, harmless error.              Rice, Id. at

¶15.

       {¶ 27} It is once again worth repeating what we said in Rice:

       {¶ 28} “A blanket policy of denying all requests without a

hearing, which Defendant-appellant argues the Court of Common Pleas

of Champaign County applies, would not be an exercise of sound

discretion. However, on this record, we have no basis to find that

the court has such a policy.

       {¶ 29} “It is unfortunate that the General Assembly crafted

R.C. 2941.041 as it did. That section creates a substantive right

of relief, but permits the court to deny the right by overruling

the defendant's procedural request for a hearing. If that allows

courts disposed against the state's policy favoring intervention

in lieu of conviction to undermine that policy by arbitrarily

denying the hearing, then the General Assembly should remove that

impediment against its policy from R.C. 2941.041.”         Id. at ¶17-18.
                                                                   9

     {¶ 30} Defendant’s assignment of error is overruled.       The

judgment of the trial court will be affirmed.



     FAIN, J., concurs.



     DONOVAN, J., dissenting:

     {¶ 31} I disagree.   In my view, the explanation the court

offered at Nealeigh’s disposition as to why intervention in lieu

of conviction “is not appropriate in the present case” (T. 16-17)

reveals a refusal to exercise sound discretion in holding a hearing.

 This, coupled with a concession by the State at oral argument

that only one grant of intervention in lieu of conviction order

could be located in the Champaign County Common Pleas Court’s

history warrants reversal in the case.

     {¶ 32} When the legislature enacted the ILC version of R.C.

2951.041 in 1999,    a policy determination was made 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

community and the individual to treat the cause rather than punish

the crime.   In my view, the lack of hearings over a decade or more

time frame, along with the following statements by the trial court

establish a refusal by the court to exercise sound discretion.

Specifically, at disposition the court made the following erroneous
                                                                    10

statement regarding the ILC statute:

     {¶ 33} “I don’t believe the intervention in lieu of conviction

process   necessarily   applies   to   the   present   circumstances.”

Immediately thereafter by reference to the “insidious nature of

heroin,” the court makes it readily apparent that it holds a view

that ILC should not and does not apply to heroin possession cases.

 This is simply not the law.

     {¶ 34} The trial court’s interpretation and application of the

statutory eligibility requirements for intervention in lieu of

conviction is a matter of law subject to de novo review.        State

v. Casto, Clinton App. No. CA 2008-08-033, 2009-Ohio-791.          By

excluding heroin possession from ILC consideration and virtually

never conducting a hearing on ILC, the court has abrogated its

responsibility to exercise its sound discretion.

     {¶ 35} I would reverse and remand.

                        . . . . . . . . . .




Copies mailed to:

Richard L. Houghton, III, Esq.
Jose M. Lopez, Esq.
Hon. Roger B. Wilson
