[Cite as State v. Chandler, 2016-Ohio-164.]


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

STATE OF OHIO                                         C.A. No.       14CA010676

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CRYSTAL CHANDLER                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   14CR089297

                                 DECISION AND JOURNAL ENTRY

Dated: January 19, 2016



        MOORE, Judge.

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

Court of Common Pleas granting Defendant-Appellee Crystal Chandler’s motion for intervention

in lieu of conviction (“ILC”). We reverse.

                                                 I.

        {¶2}     In April 2014, Ms. Chandler was indicted on one count of possession of drugs in

violation of R.C. 2925.11(A), a felony of the fifth degree. Ms. Chandler filed a motion seeking

ILC pursuant to R.C. 2951.041, which the State opposed. After a hearing on the motion, at

which the State objected to Ms. Chandler’s eligibility to participate in an ILC program, the trial

court granted her motion, accepted her guilty plea, and ordered the proceedings stayed.

        {¶3}     The State sought leave to appeal, which this Court granted. The State has raised a

single assignment of error for our review. Ms. Chandler has not filed a brief in this matter, and
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thus, we “may accept the [State’s] statement of the facts and issues as correct and reverse the

judgment if [the State’s] brief reasonably appears to sustain such action.” App.R. 18(C).

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRONEOUSLY GRANTED [MS.] CHANDLER’S
       MOTION FOR [ILC] OVER THE STATE’S OBJECTION IN VIOLATION OF
       R.C. 2951.041(B)(1).

       {¶4}    The State argues in its sole assignment of error that the trial court erred in

granting Ms. Chandler’s motion for ILC without the prosecutor’s recommendation because she

was statutorily ineligible. We agree.

       {¶5}    “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). “If, after a hearing, the trial court determines that

an offender is eligible for ILC, then it shall accept the offender’s guilty plea, place the offender

under the general control and supervision of the appropriate probation or other qualified agency,

and establish an intervention plan for the offender.” Massien at ¶ 9, citing R.C. 2951.041(C) and

(D). “The intervention plan shall last at least one year, during which the offender is ordered to

abstain from alcohol and illegal drug use, to participate in treatment and recovery-support

services, and to submit to regular random testing for drug and alcohol use.” Massien at ¶ 9,

citing R.C. 2951.041(D). “If the offender successfully completes the intervention plan, the trial

court shall dismiss proceedings against the offender without an adjudication of guilt and may

order the sealing of records related to the offense.” Massien at ¶ 9, citing R.C. 2951.041(E). “If

the offender fails to comply with any term or condition imposed as part of the intervention plan,
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the court shall enter a finding of guilt and impose the appropriate sanction.” Massien at ¶ 9,

citing R.C. 2951.041(F).

       {¶6}    “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.

       {¶7}    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. 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.) Id. “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.” Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio

St.3d 536, 2014-Ohio-2440, ¶ 25.

       {¶8}    R.C. 2951.041(B)(1) states:

       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
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       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.)

       {¶9}    Specifically, the State takes issue with the trial court’s failure to comply with the

portion of R.C. 2951.041(B)(1) that has been italicized above. As the State has not challenged

any of the other eligibility requirements, the only issue before this Court is whether Ms.

Chandler’s plea and/or conviction in Medina County in another case affected her eligibility for

ILC in the instant matter.

       {¶10} At the ILC hearing, the State pointed out that, at the time of the hearing, Ms.

Chandler was on community control for a felony drug case from Medina County. The parties

seemed to agree that Ms. Chandler had entered a plea and been sentenced in the Medina case at

the time of the ILC hearing. Nonetheless, Ms. Chandler’s counsel argued that she should still be

eligible for ILC, because, at the time Ms. Chandler filed her motion in the instant matter, the

Medina case was still pending.        The trial court and counsel proceeded to discuss the

circumstances under which the State’s recommendation became necessary before the trial court

could find Ms. Chandler eligible to participate in the ILC program. There was debate about

whether the recommendation became necessary only if Ms. Chandler had been sentenced in the

Medina case, or if the mere pendency of the Medina case caused the recommendation to be

necessary. The trial court concluded that “the limitation language [in R.C. 2951.041(B)(1)] is

not applicable in a situation where an individual has not yet been convicted at the time charges

are brought against them.”      Thereafter, the trial court granted the motion, finding that,

“[a]lthough [Ms. Chandler] clearly has entered a plea in that other case in Medina County and
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been convicted in that regard, * * * the [ILC] statute is still available to her and she does not

require on equal protection grounds the consent or approval of the State of Ohio in that regard.”

       {¶11} We begin by noting that the trial court may have undertaken a constitutional

analysis of R.C. 2951.041(B)(1). Given that neither side raised the issue of the constitutionality

of R.C. 2951.041(B)(1), had an opportunity to brief the issue, had notice that the issue would be

considered, and that the record does not evidence that resolving this constitutional question was

absolutely necessary, we conclude the trial court should not have considered the constitutionality

of the section. See Ohio Pub. Emp. Retirement Sys. v. Coursen, 156 Ohio App.3d 403, 2004-

Ohio-1229, ¶ 6; State v. Koller,12th Dist. Warren No. CA2013-07-069, 2014-Ohio-450, ¶ 26-27.

       {¶12} With respect to the merits of the issue raised by the State, in light of the plain

language of R.C. 2951.041(B)(1), we conclude that the trial court could not have found Ms.

Chandler eligible for the ILC program absent the State’s recommendation. As noted above, R.C.

2951.041(B)(1) provides that:

       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.)

       {¶13} At the time of the ILC hearing, the parties did not dispute that Ms. Chandler had

entered a plea and had been sentenced in the Medina case. There also appears to be no dispute

that the conviction in the Medina case was for a felony drug offense. Accordingly, under the
                                                 6


plain language of the statute, the trial court could only find Ms. Chandler eligible for ILC if the

State recommended that she be found eligible. As the State objected to her participation, the trial

court erred in determining Ms. Chandler was eligible, and thus, erred in placing her on ILC.

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

                                                III.

       {¶15} The judgment of the Lorain County Court of Common Pleas is reversed and the

matter is remanded for proceedings consistent with this decision.

                                                                              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 Lorain, 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
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CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.

PAUL R. ST. MARIE, Attorney at Law, for Appellee.
