[Cite as State v. Wile, 2017-Ohio-699.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 16CA41
TONY L. WILE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case No. 2007CR0993 D




JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                         February 23, 2017




APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

BAMBI COUCH PAGE                               RANDALL E. FRY
Prosecuting Attorney                           10 West Newlon Place
Richland County, Ohio                          Mansfield, Ohio 44902

By: DANIEL M. ROGERS
Assistant Prosecuting Attorney
Richland County Prosecutor’s Office
38 S. Park Street
Mansfield, Ohio 44902
Richland County, Case No. 16CA41                                                        2

Hoffman, J.

       {¶1}   Defendant-appellant Tony L. Wile appeals the May 19, 2016 Journal Entry

finding Appellant guilty of a probation violation and the May 24, 2016 Judgment Entry

denying Appellant’s motion to dismiss, both entries entered by the Richland County Court

of Common Pleas. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 15, 2009, Appellant entered a plea of no contest to the charges

of possession of Ketamine, a Schedule III controlled substance, in violation of R.C.

2925.11(A), a third degree misdemeanor; and possession of LSD, a Schedule I controlled

substance, in violation of R.C. 2925.11(A), a felony of the fourth degree.

       {¶3}   Via Judgment Entry filed on March 10, 2009, the trial court ordered

Appellant undergo intervention in lieu of conviction. Pursuant to the trial court’s entry,

Appellant would continue drug intervention treatment for a minimum of one year and

should not be released without approval of the trial court. The entry states,

              2. As required by O.R.C. 2951.041(D), Defendant is placed under

       the supervision of the Richland County Court Services and subject to

       community control sanctions for a period of at least one year.***

       {¶4}   On November 6, 2013, a bench warrant was issued for Appellant due to his

failure to complete his intervention in lieu of conviction terms.

       {¶5}   On August 7, 2014, the trial court found Appellant guilty of both counts of

possession of drugs, based upon his prior plea of no contest. Via Sentencing Entry of

September 18, 2014, the trial court ordered Appellant pay a fine to the Mansfield Police

Department and restitution to the Mansfield Police Department Lab. The trial court
Richland County, Case No. 16CA41                                                           3


suspended Appellant’s license for six months, and imposed two years of community

control. The trial court indicated a violation of community control would lead to a prison

term of eighteen months.

       {¶6}   On January 26, 2016, a bench warrant was issued due to Appellant’s

violation of community control.

       {¶7}   On February 2, 2016, a notice of hearing and probation violation was filed

by the state, alleging Appellant violated the terms of his community control.

       {¶8}   On May 17, 2016, Appellant filed a motion to dismiss.

       {¶9}   On May 18, 2016, the trial court conducted a hearing on the probation

violation. Via Journal Entry filed on May 19, 2016, the trial court found Appellant guilty of

the probation violation. The trial court imposed sentence of thirty days as to Count 1 and

eighteen months as to Count 2, to be served concurrently.

       {¶10} On May 24, 2016, via Judgment Entry, the trial court denied Appellant’s

motion to dismiss.

       {¶11} Appellant appeals, assigning as error,

       {¶12} “I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

MOTION TO DISMISS.”

       {¶13} Appellant maintains the trial court lacked jurisdiction to impose community

control sanctions exceeding five years and to find Appellant violated the community

control sanctions.

       {¶14} Pursuant to R.C. 2951.07, a defendant’s total period of probation cannot

exceed five years. The statute reads,
Richland County, Case No. 16CA41                                                         4


             A community control sanction continues for the period that the judge

      or magistrate determines and, subject to the five-year limit specified in

      section 2929.15 or 2929.25 of the Revised Code, may be extended. If the

      offender under community control absconds or otherwise leaves the

      jurisdiction of the court without permission from the probation officer, the

      probation agency, or the court to do so, or if the offender is confined in any

      institution for the commission of any offense, the period of community

      control ceases to run until the time that the offender is brought before the

      court for its further action.



      {¶15} Here, Appellant was granted intervention in lieu of conviction, pursuant to

R.C. 2951.041. The statute reads, in pertinent part,



             (D) If the court grants an offender's request for intervention in lieu of

      conviction, the court shall place the offender under the general control and

      supervision of the county probation department, the adult parole authority,

      or another appropriate local probation or court services agency, if one

      exists, as if the offender was subject to a community control sanction

      imposed under section 2929.15, 2929.18, or 2929.25 of the Revised Code.

      The court shall establish an intervention plan for the offender. The terms

      and conditions of the intervention plan shall require the offender, for at least

      one year from the date on which the court grants the order of intervention

      in lieu of conviction, to abstain from the use of illegal drugs and alcohol, to
Richland County, Case No. 16CA41                                                         5


      participate in treatment and recovery support services, and to submit to

      regular random testing for drug and alcohol use and may include any other

      treatment terms and conditions, or terms and conditions similar to

      community control sanctions, which may include community service or

      restitution, that are ordered by the court.

             ***

             (F) If the court grants an offender's request for intervention in lieu of

      conviction and the offender fails to comply with any term or condition

      imposed as part of the intervention plan for the offender, the supervising

      authority for the offender promptly shall advise the court of this failure, and

      the court shall hold a hearing to determine whether the offender failed to

      comply with any term or condition imposed as part of the plan. If the court

      determines that the offender has failed to comply with any of those terms

      and conditions, it shall enter a finding of guilty and shall impose an

      appropriate sanction under Chapter 2929. of the Revised Code. If the court

      sentences the offender to a prison term, the court, after consulting with the

      department of rehabilitation and correction regarding the availability of

      services, may order continued court-supervised activity and treatment of the

      offender during the prison term and, upon consideration of reports received

      from the department concerning the offender's progress in the program of

      activity and treatment, may consider judicial release under section 2929.20

      of the Revised Code.

             (G) As used in this section:
Richland County, Case No. 16CA41                                                           6


              ***

              (2) “Community control sanction” has the same meaning as in

       section 2929.01 of the Revised Code.

              ***

              (Emphasis added.)



       {¶16} On March 10, 2009, the trial court entered a judgment of intervention in lieu

of conviction, pursuant to R.C. 2951.041. The statute provides a trial court granting

intervention in lieu shall place the offender under the general control and supervision of

the county probation department, the adult parole authority, or other appropriate agency,

“as if” the offender was subject to community control sanction. We find Appellant’s

intervention in lieu of conviction, while “as if” on community control, was not equivalent to

community control imposed as part of a sentence following conviction. Appellant’s

subsequent sentence based upon his prior plea of no contest did not exceed the five year

limit on community control. Therefore, we conclude Appellant was not subjected to

community control sanctions for a period exceeding five years.

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




       {¶18} The judgment of the Richland County Court of Common Pleas is affirmed.
Richland County, Case No. 16CA41   7


By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur
