[Cite as State v. Cebula, 2014-Ohio-3276.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NO. 2013-L-085
        - vs -                                    :

TIMOTHY CEBULA,                                   :

                 Defendant-Appellant.             :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 13 CR
000268.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Harvey B. Bruner, Harvey B. Bruner Co., LPA, Hoyt Block Building, 700 West St. Clair
Avenue, Suite 110, Cleveland, OH 44113 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Lake County Court of Common Pleas. Appellant

 Timothy Cebula pled guilty to two counts of forgery and one count of theft. Before he

 pled guilty, however, he filed a motion for intervention in lieu of conviction, (ILC) which

 the trial court denied. Cebula timely appeals. He asserts, in part, that the trial court

 erred by not holding a hearing on his ILC motion. For the following reasons, we affirm.
      {¶2}   In June 2012, Cebula worked for a small company, MarinerTek, in a sales

capacity. As part of his job, he was given an expense account to help attract potential

clients and was also responsible for making contracts on behalf of the company.

During his time with MarinerTek, however, Cebula used money from the expense

account for his own personal use and forged signatures on a purported contract. He

was subsequently charged with two counts of forgery in violation of R.C. 2913.31(A)(1)

and R.C. 2913.31(A)(3) and one count of theft in violation of R.C. 2913.02(A)(2), all of

which are fifth degree felonies.

      {¶3}   Shortly after discovery, Cebula moved for ILC because Cebula's mental

illness may have played a factor in the commission of the offenses. The trial court

indicated that it would consider the motion and ordered an evaluation be conducted on

Cebula and scheduled a hearing. The hearing on the ILC motion was combined with

Cebula’s plea and sentencing hearing. The following exchange contains the entirety of

the hearing on the ILC motion:

      {¶4}   “JUDGE LUCCI: Now you have previously filed a motion for intervention

in lieu of conviction, on June 27, 2013. I issued an order on July 10, 2013 referring you

to the Adult Probation Department for a pre-sentence report from the Lake County

Adult Probation Department, and I have received an intervention work-up by Dr.

Rindsberg of the Adult Probation Department. Those are dated August 6th and August

7th respectively; and I have also received a victim impact statement from MarinerTek. I

have also met in chambers with counsel and Probation to find out the position of the

parties and it is my understanding that the State of Ohio contends that you are

ineligible, based upon the criteria and the intervention work-up by Dr. Rindsberg, and

regardless of eligibility—even if you are eligible—I have informed your attorney that


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based upon the pre-sentence report, based upon the victim impact statement, that I

would not grant intervention here, and also, by the way, based on Dr. Rindsberg’s

report, with the various conflicts and inconsistencies there. Do you understand that?

      {¶5}   “MR. CEBULA: Yes.

      {¶6}   “JUDGE LUCCI: Do you understand that intervention is not a right, it’s a

privilege, and that it is always up to the judge, and if the judge believes that intervention

would demean the offense, or that the public would be ill-served by granting

intervention, or if the Court does not believe that mental health issues were a factor

leading to your criminal behavior amongst other things, that the court does not have to

grant intervention?

      {¶7}   “MR. CEBULA: Yes.

      {¶8}   “JUDGE LUCCI: And you understand that it would not be an appealable

decision if I don’t grant intervention?

      {¶9}   “MR. CEBULA: Yes."

      {¶10} The hearing continued and Cebula pled guilty to all counts and was

sentenced to a community control sanction, amongst other things.               This appeal

followed.

      {¶11} As his sole assignment of error, Cebula contends that:

      {¶12} “The trial court’s denial of appellant’s request for intervention in lieu of

conviction was an abuse of discretion.”

      {¶13} Within this assignment of error, Cebula makes three arguments. First, he

asserts that there was no hearing conducted to determine Cebula’s eligibility for ILC.

Next, he argues that the trial court needed to make findings of fact on Cebula’s

eligibility for ILC. He also argues that the record demonstrates Cebula would meet all


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of the criteria for ILC. The state responds that Cebula, by pleading guilty, has waived

any alleged error with the trial court's ruling on the ILC motion. The state also alleges

that Cebula does not meet the eligibility criteria for ILC.

      {¶14} We first turn to waiver. The state argues that per Tollett v. Henderson,

411 U.S. 258, 267 (1973) Cebula waived this argument. Under Tollett, a guilty plea will

generally waive the consideration of all constitutional issues except for whether the

plea was intelligent and voluntary. See also State v. Spates, 64 Ohio St.3d 269, 272

(1992).   Later, the U.S. Supreme Court clarified that Tollett did not stand for the

proposition that a guilty plea waives all constitutional issues. Menna v. New York, 423

U.S. 61, 62, fn 2. (1975). Rather, “a counseled plea of guilty is an admission of factual

guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue

of factual guilt from the case. . . . A guilty plea, therefore, simply renders irrelevant

those constitutional violations not logically inconsistent with the [v]alid establishment of

factual guilt and which do not stand in the way of conviction, if factual guilt is validly

established.” Id. Therefore, where the defendant alleges error that accepts the validity

of the guilty plea, Tollett does not bar the claim. Id.

      {¶15} Moreover, Tollett’s pronouncement was made in the context of federal

habeas corpus proceedings.         Therefore, the U.S. Supreme did not consider the

possibility of rights guaranteed by state statutes such as the one currently at issue

here. See Moreland v. Bradshaw, 699 F.3d 908, 922 (6th Cir. 2012) (recognizing

violations of state law are not cognizable in federal habeas review).

      {¶16} More importantly, intervention in lieu of conviction focuses on the

response to the defendant’s guilt rather than the question of whether the defendant is

guilty. For instance, under R.C. 2951.041(C) a defendant is required to plead guilty to


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the offense for which he or she seeks intervention. Furthermore, the Ohio Supreme

Court has explained that “‘[i]n 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.

Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, ¶10, quoting State v. Shoaf, 140 Ohio

App.3d 75, 77 (10th Dist. 2000) (referring to an older version of R.C. 2951.041).

Therefore, when viewed in light of ILC’s requirements and purpose, he has not waived

the alleged error surrounding his ILC motion by pleading guilty.

      {¶17} We now turn to the merits.     R.C. 2951.041(A)(1) does not require the trial

court to conduct a hearing, merely because ILC is requested. State v. Rice, 180 Ohio

App.3d 599, 2009-Ohio-162, ¶14-15 (2d Dist.). However, if the trial court “considers”

the ILC motion, the trial court must then hold a hearing to determine if the defendant is

eligible. R.C. 2951.041(A)(1).

      {¶18} Other courts have described a trial court’s mere consideration of the ILC

motion as the trigger to the right to hearing as “inartful” and we agree with that

assessment. See State v. Branch, 2d Dist. Montgomery No. 25261, 2013-Ohio-2350,

¶12. By virtue of an ILC motion being filed, a trial court always considers the motion to

some degree. However, such an interpretation is inconsistent with the trial court’s

ability to reject the ILC motion without a hearing. Fortunately, we do not have difficulty

determining whether the trial court “considered” the ILC motion in this case. In an

order referring defendant for evaluation on the ILC motion, the trial court stated that “it

appears that defendant may be eligible” for ILC.         This shows that the trial court

considered the request.


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      {¶19} Regarding the hearing issue, it is far from clear what the General

Assembly meant when it stated that a hearing must be held. The Second District has

also noted it is unsure whether R.C. 2951.041(A)(1) requires “a full evidentiary hearing,

or the opportunity to be heard, similar to allocution[.]” Branch, supra. The Second

District, however, did not decide this issue, and we also do not need to decide it.

      {¶20} After meeting with counsel in chambers, the trial court stated that even if

Cebula were eligible for ILC, he was still not going to grant Cebula’s ILC motion.

Therefore, whether Cebula was eligible was not determinative of his decision and a

hearing on eligibility was not required. Although Cebula argues in his assignment of

error that the trial court abused its discretion in denying the request for ILC, he

advances no argument in his brief, nor cites to any case law that supports this

proposition. App.R. 16(A)(7) requires the parties to present “‘[a]n argument containing

the contentions of the appellant with respect to each assignment of error presented for

review and the reasons in support of the contentions . . . .’” It is not the appellate

court’s responsibility to root out meritorious arguments for the parties. Tally v. Patrick,

11th Dist. Trumbull No. 2008-T-0072, 2009-Ohio-1831, ¶22.

      {¶21} Accordingly, the sole assignment of error is without merit. The judgment

of the Lake County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only.




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