[Cite as State v. Lageson, 2019-Ohio-919.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             WARREN COUNTY




STATE OF OHIO,                                     :

        Appellant,                                 :     CASE NO. CA2018-05-054

                                                   :           OPINION
    - vs -                                                      3/18/2019
                                                   :

ROBERT DAVID LAGESON,                              :

        Appellee.                                  :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 17CR33652



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellant

Kim Bui, 8080 Beckett Center Drive, Suite 112, West Chester, Ohio 45069, for appellee


        RINGLAND, J.

        {¶ 1} The state of Ohio appeals the decision of the Warren County Court of Common

Pleas, which granted Robert Lageson's motion for intervention in lieu of conviction. For the

reasons described below, this court reverses the trial court's decision and remands the case

for sentencing on Lageson's felony conviction.

        {¶ 2} In January 2017, Lageson was the driver of a vehicle in which an illegal drug

transaction took place between Lageson's passenger and an undercover police officer.
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Lageson drove the passenger to a prearranged location where the sale would take place.

The passenger then sold heroin to the officer. The facts would tend to indicate that Lageson

was aware that a drug transaction was taking place in the vehicle.

       {¶ 3} In November 2017, a Warren County grand jury indicted Lageson with count

one, trafficking in heroin, a violation of R.C. 2925.03(A)(1) and a fourth-degree felony, count

two, aggravated trafficking in drugs (fentanyl), a violation of R.C. 2925.03(A)(1), also a fourth-

degree felony, and count three, permitting drug abuse, a violation of R.C. 2925.13(A), and a

fifth-degree felony.

       {¶ 4} The matter proceeded to a jury trial in February 2018. The jury rendered a

verdict of not guilty on both drug trafficking counts and a verdict of guilty on permitting drug

abuse.

       {¶ 5} Immediately after the verdicts, Lageson moved for intervention in lieu of

conviction ("ILC"). In support of his motion, Lageson argued that had the state only charged

him with permitting drug abuse, he would have qualified for ILC, and he should therefore be

allowed to enter into an intervention plan.1

       {¶ 6} Several days later, the court entered judgment in favor of the state as to count

three of the indictment and discharged Lageson from counts one and two. The court ordered

a presentence-investigative report and set a sentencing date.

       {¶ 7} However, in April 2018, and before sentencing occurred, the court held a

hearing on Lageson's ILC motion. During the hearing, the court indicated that counsel and

the court had held an in chambers discussion concerning whether Lageson qualified for ILC.

The court then stated that it had considered the arguments of both sides and determined that

Lageson qualified for ILC and would grant him ILC. The state objected. In a subsequent


1. ILC is not permitted for offenders charged with felony one through four drug trafficking charges. R.C.
2951.041(B)(3).
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entry granting ILC, the court stated that it had accepted Lageson's plea of guilty and waiver

of rights to a speedy trial at the April hearing and was ordering an intervention plan consisting

of three years of abstinence, drug testing, and probation monitoring.

       {¶ 8} The state appeals, raising a single assignment of error.

       {¶ 9} Assignment of Error No. 1:

       {¶ 10} THE TRIAL COURT DID NOT HAVE AUTHORITY TO GRANT LAGESON ILC

AFTER A JURY TRIAL AND GUILTY VERDICT.

       {¶ 11} The state argues that the trial court lacked statutory authority to grant

Lageson's request for ILC because the ILC statute requires a defendant to enter a guilty plea,

which Lageson was incapable of doing after having been found guilty. However, Lageson

argues that the two drug trafficking counts precluded him from moving for ILC prior to the

trial, that he would have moved for ILC if he could have, and that he should not be penalized

and prevented from seeking ILC because of charges for which he was found not guilty. He

also argues that what occurred in this case could prompt the state to "overcharge"

defendants to defeat ILC qualification.

       {¶ 12} This court conducts a de novo review of whether an accused is statutorily

eligible for intervention in lieu of conviction. State v. Casto, 12th Dist. Clermont No. CA2008-

08-033, 2009-Ohio-791, ¶ 12. Accordingly, we independently review the record and give no

deference to the court's interpretation of the ILC statute. State v. Kormos, 12th Dist.

Clermont No. CA2011-08-059, 2012-Ohio-3128, ¶ 13.              This court's main objective in

interpreting statutes is to determine and give effect to the legislative intent. State v. Morgan,

153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 20.            To determine the intent of the General

Assembly, we look primarily to the language of the statute itself. Id.




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        {¶ 13} ILC is a proceeding governed by R.C. 2951.041.2 It allows offenders, who

allege that drugs, alcohol, or mental illness contributed to their criminal offense, the

opportunity to complete a treatment plan to avoid a criminal conviction. If the court accepts

the offender's request for ILC, then the court is required to hold a hearing to determine if the

offender qualifies for ILC. R.C. 2951.041(A)(1). If the court determines the offender is

qualified, the offender must offer a plea of guilty and waiver of rights, which the court must

accept. R.C. 2951.041(C). The court will then stay criminal proceedings while the offender

attempts to complete an intervention plan under the control and supervision of the probation

department, or similar agency. R.C. 2951.041(C) and (D). If the court later finds that the

offender successfully completed the intervention plan, then the court is required to dismiss

the charges. R.C. 2951.041(E). If the offender fails to complete the plan, then the court is

required to enter a finding of guilt on the plea. R.C. 2951.01(F).

        {¶ 14} Initially, we note that the court's entry granting ILC indicates that it accepted

Lageson's plea of guilty and waivers of rights at the April hearing. However, the transcript of

the ILC hearing does not reflect that any such plea was taken.                               And based upon

representations by counsel for the state and Lageson at oral argument, this is an accurate

understanding of the record.

        {¶ 15} Because Lageson never entered a guilty plea, he would not have complied with

a statutory prerequisite to entering ILC and this court could conceivably reverse the trial

court's decision on that basis. However, it appears that the reason that Lageson did not

enter a guilty plea at the hearing was because he had already been found guilty by the jury.

Thus, the pertinent question in this appeal is whether the ILC statute can be interpreted to

allow Lageson to enter ILC after a jury trial and verdict.


2. All references in this opinion to the ILC statute are in regard to the version in effect at the time of Lageson's
offense in January 2017.
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         {¶ 16} Relevant to this appeal, R.C. 2951.041(A)(1) provides:

               [T]he court may accept, prior to the entry of a guilty plea, the
               offender's request for intervention in lieu of conviction. * * * The
               request also 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 * * *.

And R.C. 2951.041(C) provides:

               If the court finds under division (B) of this section that the
               offender is eligible for intervention in lieu of conviction and grants
               the offender's request, the court shall accept the offender's plea
               of guilty and 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.

(Emphasis added.) These two provisions indicate that the legislature did not intend for an

offender to request ILC after a finding of guilt. First, the statute contemplates that the

offender's request for ILC must occur prior to the offender offering a plea of guilty. However,

in this case, Lageson has already been convicted and there is no charge to which he may

plead.

         {¶ 17} Second, the statute refers to four stages in the criminal process, i.e., the

preliminary hearing, indictment, arraignment, and the trial. The statute requires the offender

to execute a waiver of rights to these stages unless the hearing, indictment, or arraignment

has "already occurred." Thus, the statute specifically excepts the trial stage from this

"already occurred" provision, which would indicate that the legislature did not anticipate that

ILC would be sought after a trial had "already occurred."

         {¶ 18} Furthermore, R.C. 2951.041(E) provides:

               If the court grants an offender's request for intervention in lieu of
               conviction and the court finds that the offender has successfully
               completed the intervention plan * * * the court shall dismiss the
               proceedings against the offender. Successful completion of the
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               intervention plan and period of abstinence under this section
               shall be without adjudication of guilt and is not a criminal
               conviction for purposes of any disqualification or disability
               imposed by law and upon conviction of a crime* * *.

(Emphasis added.) Thus, completion of the intervention plan results in dismissal of the

charges, "without adjudication of guilt." This provision of the statute would be rendered

illogical if an offender could petition for ILC after having had a guilty finding rendered by a

jury.

        {¶ 19} And finally, R.C. 2951.041(F) provides: "If the court determines that the

offender has failed to comply with [the intervention plan], it shall enter a finding of guilty * * *."

Again, the statute contemplates that failure to complete the intervention plan will result in the

court finding the defendant guilty. But this provision of the statute would also be rendered

illogical if an offender had already been found guilty by a jury.

        {¶ 20} Based upon the foregoing, this court finds that the language of the statute is not

reasonably susceptible to the interpretation advanced by Lageson. The statute requires the

defendant enter a plea of guilty in exchange for entering the program. While Lageson could

technically offer a "plea," it would be a meaningless act after the jury rendered a guilty verdict

and the court entered judgment on the verdict. Again, there is no charge to "plea" to after the

guilty finding has been made.

        {¶ 21} Moreover, the statute provides for a finding of guilt only after the offender has

qualified for ILC and failed to complete the intervention plan. But in Lageson's case, the

finding of guilt has already occurred. The statute makes clear that the General Assembly did

not contemplate that an offender would seek ILC after going to trial and having received a

verdict.

        {¶ 22} Related rules and statutory provisions support this position. Crim.R. 32(A)

addresses the imposition of sentence. The rule provides that sentences must be imposed "


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without unnecessary delay." However, there would be a significant delay if an offender

requested ILC after a guilty verdict and finding of guilt. The ILC statute also does not refer to

or require a waiver of rights under Crim.R. 32(A).

       {¶ 23} Finally, sentencing for felony convictions is controlled by the provisions of R.C.

2929.11 through 2929.19.        The felony sentencing statutes do not provide ILC as a

sentencing option, which lends additional support to the argument that an offender cannot

seek ILC after being convicted at trial.

       {¶ 24} Lageson's argument about the inherent unfairness in what occurred here is

appealing but lacks legal merit. The statute simply provides no mechanism for what he

wishes to achieve. It is up to the General Assembly, not this court, to provide the remedy if

there is problem with the statute. And Lageson was not "overcharged' as the state had a

factual basis to charge him with drug trafficking.

       {¶ 25} For the reasons stated, this court sustains the state's sole assignment of error.

This court reverses the decision of the trial court and remands with instructions to the lower

court to proceed with sentencing Lageson on his conviction for permitting drug abuse.

       {¶ 26} Judgment reversed and remanded.


       HENDRICKSON, P.J., and M. POWELL, J., concur.




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