[Cite as State v. Redic, 2013-Ohio-1070.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                       :

        Plaintiff-Appellee                          :             C.A. CASE NO.    25176

v.                                                  :             T.C. NO.    11CR2502

JAI L. REDIC                                        :             (Criminal appeal from
                                                                   Common Pleas Court)
        Defendant-Appellant                         :

                                                    :

                                            ..........

                                            OPINION

                          Rendered on the    22nd        day of       March     , 2013.

                                            ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

ADELINA E. HAMILTON, Atty. Reg. No. 0078595, Assistant Public Defender, 117 S.
Main Street, Suite 400, Dayton, Ohio 45422
      Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Jai L. Redic appeals a decision of the Montgomery
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County Court of Common Pleas, General Division, overruling her motion for Intervention in

Lieu of Conviction (ILC). Redic filed her motion for ILC on January 5, 2012, while her

memorandum in support of said motion was filed shortly thereafter on January 24, 2012.

On February 8, 2012, the trial court issued a decision overruling Redic’s motion and

declaring her ineligible for ILC. Redic filed a timely notice of appeal on May 4, 2012.

       {¶ 2}    At approximately eleven p.m. on July 24, 2011, Dayton Police Officers

Joseph Setty and James Mollohan responded to a call regarding a “boyfriend/girlfriend”

dispute at 2253 Northcrest Drive in Dayton, Ohio. Upon arriving at 2253 Northcrest Dr.,

the officers were informed that the “boyfriend” had left the residence and was reported to be

at 5006 Northcrest Drive.

       {¶ 3}    The officers then traveled to 5006 Northcrest Dr. and knocked on the door.

A young child answered the door. The officers asked the child if any adults were at home,

and the child stated that he was being watched by an aunt who was sleeping on the couch.

The officers asked the child to go wake up her aunt, who was later identified as Redic.

Redic got up from the couch and greeted the officers. The officers explained their presence

at the residence and asked if they could search for the “boyfriend.” Redic gave the officers

her consent to search the premises. During the course of their search, the officers observed

several baggies of what appeared to be crack cocaine on the coffee table in the front room, as

well as scales and razor blades. Officer Setty also discovered a handgun behind the pillow

where Redic had been laying her head on the couch. Redic was subsequently arrested and

taken into custody.

       {¶ 4}    On September 27, 2011, Redic was indicted by a Montgomery County
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Grand Jury for possession of cocaine (in an amount exceeding five grams but less than ten

grams - crack), in violation of R.C. 2925.11(A), a felony of the third degree. However, on

September 30, 2011, H.B. 86 was passed by the Ohio Legislature. With respect to Redic,

H.B. 86 had the effect of reducing her offense from a felony of the third degree to a felony of

the fourth degree, thus making her potentially eligible for ILC.

       {¶ 5}    On January 5, 2012, Redic filed a motion for ILC alleging that drug and/or

alcohol usage was a factor leading to her criminal behavior.              Redic also filed a

memorandum in support of her motion for ILC arguing that under the new H.B. 86, she was

eligible for ILC. As previously stated, the trial court issued a decision finding that Redic

was ineligible for ILC.       Specifically, the trial court found that the “aggravating

circumstances” in R.C. 2929.13(B)(2)(a)-(i) render fourth and fifth degree offenses ILC

ineligible. The trial court reasoned that a person charged with a felony of the fourth degree

possession of cocaine while in possession of a firearm was ineligible for ILC. R.C.

2929.13(B)(2)(i).

       {¶ 6}    On February 15, 2012, Redic filed a motion to suppress. After a hearing held

on March 9, 2012, the trial court overruled Redic’s motion in a judgment entry issued on the

same day. Ultimately, Redic entered a no contest plea to the charged offense. The trial

court found Redic guilty as charged and sentenced her to community control.

       {¶ 7}    In the instant appeal, Redic challenges the trial court’s decision finding her

ineligible for ILC.

       {¶ 8}    Redic’s sole assignment of error is as follows:

       {¶ 9}    “THE TRIAL COURT ERRED TO THE DEFENDANT-APPELLANT’S
                                                                                                 4

PREJUDICE WHEN IT OVERRULED HER MOTION FOR INTERVENTION IN LIEU

OF CONVICTION BECAUSE THE DEFENDANT-APPELLANT WAS STATUTORILY

ELIGIBLE FOR INTERVENTION IN LIEU OF CONVICTION AND THE SENTENCING

FACTORS CONTAINED IN R.C. 2929.13(B)(2)(a)-(i) DID NOT CONSTITUTE A BAR

TO HER ELIGIBILITY AS A MATTER OF LAW.”

       {¶ 10} In her sole assignment, Redic contends that the trial court erred when it

overruled her motion for ILC. Specifically, Redic argues that the sentencing factors in R.C.

2929.13(B)(2)(a)-(i) do not constitute a bar to her eligibility to ILC as a matter of law.

Redic also points out that R.C. 2901.04 mandates that the court should interpret the law

strictly against the State and liberally in favor of the accused. Thus, Redic argues that we

should find that the nine aggravating factors contained in R.C. 2929.13(B)(2)(a)-(i) do not

create an automatic bar to her eligibility for ILC.

       {¶ 11} “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. 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. 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. R.C. 2951.041(D). If the offender successfully
                                                                                             5

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.

R.C. 2951.041(E). If the offender fails to comply with any term or condition imposed as

part of the intervention plan, the court shall enter a finding of guilt and impose the

appropriate sanction. R.C. 2951.041(F).” State v. Massien, 125 Ohio St.3d 204,

2010-Ohio-1864, 926 N.E.2d 1282, ¶ 9.

       {¶ 12} “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. State v. Shoaf (2000), 140 Ohio App.3d 75, 77, 746 N.E.2d 674

(referring to a previous, but similar, version of R.C. 2951.041). R.C. 2951.041 is not

limited to offenders charged with drug offenses. Rather, any offender charged with any

qualifying offense may be eligible for ILC so long as the trial court has ‘reason to believe

that drug or alcohol usage by the offender was a factor leading to the offender’s criminal

behavior.’ R.C. 2951.041(A)(1).      ILC is not designed as punishment, but rather as an

opportunity for first-time offenders to receive help for their dependence without the

ramifications of a felony conviction. State v. Ingram, Cuyahoga App. No. 84925,

2005-Ohio-1967, 2005 WL 977820, ¶13.” Id. at ¶ 10.

       {¶ 13} The most current version of R.C. 2951.041(B)(1) states in pertinent part:

       (B) An offender is eligible for [ILC] if the court finds all of the following:

       (1) The offender *** is charged with a felony for which the court, upon

       conviction, would impose sentence under division (B)(3)(b) of section
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       2929.13 of the Revised Code ***.1

It follows then that if the offender is charged with a felony of the fourth or fifth degree for

which the trial court would not impose sentence under division (B)(3)(b) of R.C. 2929.13,

the offender would not be eligible for ILC. If the court were to impose sentence upon an

offender for a felony of the fourth or fifth degree under R.C. 2929.13(B)(3)(b), then a

presumption of community control would exist .

       {¶ 14} R.C. 2929.13(B)(3)(b) states in relevant part as follows:

       Except as provided in (E), (F), or (G) of this section, if the court does not

       make a finding described in division (B)(2)(a), (b), (c), (d), (e), (f), (g), (h), or

       (i) of this section and if the court, after considering the factors set forth in

       section 2929.12 of the Revised Code, finds that a community control sanction

       or combination of community control sanctions is consistent with the

       purposes and principles of sentencing set forth in 2929.11 of the Revised

       Code, the court shall impose a community control sanction or combination of

       community control sanctions upon the offender.

       {¶ 15} Pursuant to the language in R.C. 2929.13(B)(3)(b), “if the court does not

make a finding described in division (B)(2)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this


          1
            The trial court spent a great deal of time in its opinion overruling Redic’s
   motion for ILC discussing how R.C. 2951.041(B)(1) of H.B. 86 issued on
   September 30, 2011, contained a clerical error in which it incorrectly referred to
   “division (B)(2)(b) of section 2929.13.” Thus, the trial court took it upon itself to
   correct the perceived error and reconstructed the statute to refer to “division
   (B)(3)(b) of section 2929.13” so that the statute would be internally consistent.
   However, on January 27, 2012, the Ohio Legislature passed emergency
   legislation which made the same statutory correction the trial court made in its
   opinion issued some thirteen days later on February 8, 2012.
                                                                                         7

section,” then a felony carries the presumption of community control sanctions. In the

instant case, however, the trial court found that one of the “aggravating circumstances” in

R.C. 2929.13(B)(2)(a)-(i) existed when Redic was charged with possession of cocaine, a

felony of the fourth degree. Specifically, the trial court found that Redic committed the

fourth degree felony offense of possession of cocaine while in possession of a firearm, in

violation of R.C. 2929.13(B)(2)(i) which states in pertinent part:

       (2) if division (B)(1) of this section does not apply, except as provided in

       division (B)(3), *** of this section, in sentencing an offender for a felony of

       the fourth or fifth degree, the sentencing court shall determine whether any of

       the following apply:

       ***

       (i) The offender committed the offense while in possession of a firearm.

       {¶ 16} “Although it does not preclude the imposition of community control

sanctions, a finding of any of the factors set forth in [R.C. 2929.13(B)(2)(a)-(i)] weighs

against the preference for community control and may justify incarceration.” State v.

Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282. Clearly, the existence of

R.C. 2929.13(B)(2)(i), possession of a firearm while committing the charged offense,

negated the presumption of community control sanctions found in R.C. 2929.13(B)(3)(b).

Therefore, it was not error for the trial court to find that the existence of one of the

“aggravating factors” set forth in R.C. 2929.13(B)(2)(a)-(i) rendered Redic ineligible for

ILC.2 Accordingly, the trial court did not err when it overruled Redic’s motion for ILC


          2
              At oral argument, counsel for Redic submitted supplemental authority
                                                                                          8

because it found that she committed the fourth degree felony offense of possession of

cocaine while in possession of a firearm.

        {¶ 17} Redic’s sole assignment of error is overruled.

        {¶ 18} Redic’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

                                        ..........

HALL, J., concurs.

FROELICH, J., concurring:

        {¶ 19} An accused is eligible for ILC if the court would impose sentence under

R.C. 2929.13(B)(3)(b).     R.C. 2929.13(B)(3)(b) provides that the court shall impose a

community control sanction unless the court makes a finding described in R.C.

2929.13(B)(2)(i). The court made such a finding3; therefore, the trial court need not impose

a community control sanction.

        {¶ 20}    The State argues that only offenses sentenced under R.C. 2929.13(B)(3)(b)

qualify for consideration for ILC. That is, although the accused may be eligible for CCS,

the legislature has determined that only those who have a presumption of CCS [pursuant to

R.C. 2929.13(B)(3)(b)] are eligible for ILC. As convoluted as this legislation may be and

no matter how much it is contrary to the benefits of ILC to the community, I must concur in

this interpretation.

   suggesting S.B. 160, effective March 22, 2013, compels a different result.
   However, this law is not retroactive and thus has no applicability to Redic’s
   appeal.
           3
            Any question concerning a court’s making this factual finding which
   directly affects an accused’s statutory eligibility for ILC, is not before us.
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                        ..........

Copies mailed to:

Michele D. Phipps
Adelina E. Hamilton
Hon. Dennis J. Langer
