Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
IN LIEU OF CONVICTION (048)
R.C. 2951.041 -- Intervention in lieu of
R.C. 2951.04 -- Conditional probation
of drug dependent person.
State v. Massien, 125 Ohio St. 3d
2010-Ohio-1864 – Nurse stole drugs from hospital where she was employed, and
was granted intervention in lieu of conviction. Syllabus: “(1) A person holding
a ‘position of trust’ for the purpose of
2929.13(B)(1)(d) is not limited solely to public officials and public
servants. (2) A private individual holds ‘a position of trust’ within the
meaning of R.C.
2929.13(B)(1)(d) if he or she occupies a special relationship of trust and
confidence equivalent to a fiduciary relationship. (3) A nurse, by virtue of his
or her employment in a hospital, does not occupy a fiduciary relationship with
his or her employer. (4) A nurse who steals drugs from his or her
employer-hospital does not hold a ‘position of trust’ within the meaning or
2929.13(B)(1)(d) and is not categorically ineligible for intervention in
lieu of conviction.”
State v. Drake, 192 Ohio App. 3d 216,
2011-Ohio-25 – Defendant charged with nonsupport was deemed ineligible for
intervention in lieu of conviction because support was for a child under age
thirteen. Held that the victim is the payee of the support order, not the child
for whose benefit it has been ordered.
State v. Ray, 181
Ohio App. 3d 590,
2009-Ohio-1395 – Identity theft prosecution was based on application for a
credit card using the information of a deceased neighbor. Intervention in lieu
of conviction properly denied as the deceased was "permanently and totally
disabled." Holding may be soft as the defendant is faulted for not providing
much in the way of a record from the lower court.
Rice, 180 Ohio App. 3d 599,
2009-Ohio-162 – Defendant‘s application for intervention in
lieu of conviction was denied without a hearing. Subsequently
she entered a negotiated plea and appealed. (1) Court rejects
the prosecutor‘s claim that the denial did not constitute a
final appealable order because denial without a hearing was
allowed and thus a substantial right was not affected. At ¶26:
"The state‘s argument misses a critical point. Defendant‘s
appeal is not from the trial court‘s November 20, 2007 decision
and order denying her request for intervention in lieu of
conviction. Rather, defendant appeals from the trial court‘s May
14, 2008 judgment entry and sentence, which is a final
appealable order, assigning as error that the court abused its
discretion in denying defendant‘s request for intervention in
lieu of conviction. The issue is whether the final order is
tainted by an abuse of discretion in the trial court‘s denial of
defendant‘s motion for intervention in lieu of conviction." (2)
Error is harmless since by statute the court could deny such
motions without a hearing. Had the court conducted a hearing,
abuse of discretion would be an issue. Dissent finds the record
establishes a blanket policy of denying such motions, which in
itself is an abuse of discretion.
Stanovich, 173 Ohio App. 3d 304,
2007-Ohio-4234 – Because the defendant was deemed ineligible
for intervention on assault charge he was found ineligible on a
related drug charge. Because
R.C. 2951.041 uses "offense" in the singular, defendant was
eligible. Compare State v. Geraci,
Franklin App. No. 04AP-26,
State v. Afshari, 187
Ohio App. 3d 151,
2010-Ohio-325 – One count of RSP pertained to a wallet and a
stereo. Second count involved a credit card. All were obtained
in a single transaction or occurrence. Offenses merged.
Rance era case. Began as an intervention in lieu of
conviction case and merger was argued at the time the guilty
pleas were entered. Ruling was deferred until the defendant was
sentenced as a violator.
State v. Leisten, 166 Ohio App. 3d 805,
2006-Ohio-2362 -- Defendant was dropped from a diversion program, then made
application for intervention in lieu of conviction. The judge erroneously ruled
she was ineligible. Though the judge could have summarily denied the application,
following changes in the law in 2000, diversion and intervention in lieu of
conviction are not mutually exclusive.
State v. Brown, 166 Ohio App. 3d 90,
R.C. 2951.041 does not provide for intervention in lieu of
conviction in OMVI cases. A court may not provide such a program on the basis of
common law. Placement is such a program means the guilty plea may not be
sustained under Crim. R. 11.
State v. McLaughlin, 157 Ohio App. 3d
2004-Ohio-1780 -- Prior to March 23, 2000 treatment in lieu of conviction
required imprisonment upon revocation. Intervention in lieu of conviction does
not. Trial court mistakenly applied earlier version of
R.C. 2951.041. Court
rebuffs state's claim multiple enactments relating to the statute meant the
intervention version never went into effect.
State v. Abi-Aazar, 149 Ohio App. 3d
2002-Ohio-5026 -- Lebanese national pled to heroin possession and was
granted intervention in lieu of conviction. Though sentence was not pronounced,
and all further criminal proceedings were stayed, the INS picked him up and
deportation was ordered. (1) On appeal defendant cannot challenge adequacy of
required advice on immigration law consequences unless he has sought to withdraw
his plea in the trial court. (2) No abuse of discretion in terminating
intervention in lieu of conviction and imposing sentence after defendant was
unable to complete rehabilitation program because of INS custody. Also see State v. Abi-Aazar, 154 Ohio App. 3d 278,
State v. Geraci, Franklin App. No.
2004-Ohio-6128 -- Determination of statutory eligibility for
intervention in lieu of conviction is a matter of law and is to reviewed de novo
on appeal. State v. Sufronko (1995), 105 Ohio App. 3d 504, 506, followed.
(1) Intervention in lieu of conviction is not available for all offenses where
community control may be granted. It is limited to where the sentence is
pursuant to R.C. 2929.13(B)(2)(b). One of the drug offenses involved permitted
community control, but pursuant to subsection (C) of
R.C. 2929.13. Thus
intervention in lieu of conviction was not permitted. Also see State v. Fritz,
Franklin App. No. 04AP-63,
State v. Jamison
(March 6, 2001), Montgomery App. No. 18509.(2) For the other offense, sentencing
was subject to Subdivision (B), but the defendant, a podiatrist, occupied a
position of trust, and was ineligible. (3) To be granted intervention, the
defendant must be eligible on all counts of the indictment.
State v. Schmidt, 149 Ohio App. 3d 89,
2002-Ohio-3923 -- Trial court denied motion for intervention in lieu of
conviction (drug court) because defendant had been charged with DUI. That
charge, which would have prevented ILC, was dropped as a part of the plea
bargain. Reversed as a dismissed DUI charge did not fall within the statutory
criteria for denying the motion.
Drager, 167 Ohio App. 3d 47,
2006-Ohio-2329 -- It was an abuse of discretion to deny
intervention in lieu of conviction based on prior misdemeanors.
Defendant had been granted ILC in the adjacent county of charges
arising from the same course of conduct. His treatment success
there was a "dress rehearsal" demonstrating the likelihood of
continued success in the second county.
State v. Flanagan, Butler App. No.
2003-Ohio-1444 -- Court finds no abuse of discretion in denial of
intervention in lieu of conviction even though another county had granted ILC on
a charge arising from the same course of criminal activity.
State v. Wiley, Franklin App. Nos.
2003-Ohio-6835, ¶ 3 -- "In order to grant a motion for
intervention in lieu of conviction, the trial court must find that the defendant
has met all of the requirements of
R.C. 2951.041(B). Even when a defendant
satisfies all of the statutory requirements, a trial court has discretion to
determine whether or not a particular defendant is a good candidate for
intervention in lieu of conviction. State v. Schmidt, 149 Ohio App. 3d
2002-Ohio-3923. We apply an abuse of discretion standard to
the review of the trial court's decision..."
State v. Shoaf (2000), 140 Ohio App. 3d 75
-- When treatment proves a failure, a defendant granted treatment in lieu of
conviction may not be placed on community control, and must be sent to prison.
Dissent points out this is an improper interpretation of
R.C. 2951.041, which
was passed in 1976, before community control replaced probation in felony cases.
Under the former sentencing statutes probation rested on the suspension of a
prison sentence, while community control does not include a suspended sentence.
State v. Markusic, 136 Ohio Misc. 2d
2003-Ohio-7372 -- As long as the defendant is enrolled in an intervention in
lieu of conviction program his property may not be forfeited. If he completes the
program and charges are dismissed, the property cannot be forfeited. If he
fails, conviction may be entered on the guilty plea and the property may be
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