State v. Rice , 2009 Ohio 162 ( 2009 )

{¶ 20} I disagree with the majority's determination that "abuse of discretion in denying a defendant's R.C. 2951.041 motion without a hearing is harmless error." "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.Bach, Warren App. No. CA2005-05-057, 2006-Ohio-501,2006 WL 279072, ¶ 4. While R.C. 2951.041 does not create a legal right to intervention in lieu of conviction, Rice has a right to fair process, and prejudicial error results when the trial court engrafts a stricter eligibility requirement into the statute than is expressly included in the statutory scheme. See State v. Schmidt, 149 Ohio App.3d 89,2002-Ohio-3923, 776 N.E.2d 113 (reversed and remanded, holding that the trial court acted arbitrarily by finding that Schmidt was not eligible for intervention in lieu of conviction based upon a dismissed driving-under-the-influence charge, and noting, "[W]e do not believe that the trial court can create its own criteria for an individual even to be eligible for ILC") See also State v. Fullenkamp (Oct. 26, 2001), Darke App. No. CA 1543, 2001 WL 1295372 (holding the trial court "erred to Fullenkamp's prejudice when it arbitrarily narrowed the eligibility criterion of this salutary statute" by requiring drug or alcohol dependency or the danger of becoming dependent as a predicate condition for eligibility).

{¶ 21} R.C. 2951.041(B) provides that an offender is eligible for intervention in lieu of conviction if the court finds that nine separate factors are met. In other words, the nine factors limit the trial court's discretion to grant intervention by identifying defendants who are ineligible. Herein, the trial court for all intents and purposes found Rice ineligible due to her involvement with multiple drugs. The journal entry denying intervention in lieu of conviction states, "Upon consideration of all matters in the case, the Court declines to grant Defendant's motion for intervention in lieu of conviction. The Court notes the various illegal substances claimed to be involved (heroin, cocaine, and marijuana)." Had the legislature intended for multiple-drug involvement to render an otherwise amenable defendant ineligible for intervention in lieu of conviction, it could have said so. See State v. Drager, 167 Ohio App.3d 47,2006-Ohio-2329, 853 N.E.2d 1180. In my view, by imposing a criterion more stringent than that set forth in the statute, the trial court effected a judicial veto of a proper legislative enactment, resulting in prejudicial error.

{¶ 22} Lastly, at oral argument, the state conceded that it did not file a motion in opposition to intervention in this case, and it acknowledged that the trial court has an apparent blanket policy of denying all motions for intervention in lieu of conviction. See State v.Carter (1997), 124 Ohio App.3d 423, 428, 706 N.E.2d 409 ("Although the trial court has the discretion to refuse to. accept a no-contest plea, it must exercise its discretion based on the facts and circumstances before it, not on a blanket policy that affects all defendants regardless of their situation"). There is a distinction between the refusal to exercise discretion at all and an abuse of discretion that is, in fact, exercised. The legislature specifically provided intervention in lieu of conviction as a sentencing option in felony cases to be applied at the court's discretion. A blanket refusal to consider that option is a refusal to exercise that discretion and an abdication of judicial responsibility.

{¶ 23} A consistent policy that never considers the option of intervention in lieu of conviction has serious consequences for each defendant. If the motion for intervention is granted and the defendant successfully completes the intervention plan, the indictment is dismissed, and the defendant avoids a felony conviction. When such motions are systematically denied, the impact is significant for first time nonviolent offenders, and the crucial analysis should be the impact of the thing done. Where the trial court has a blanket policy of denying all requests for intervention, judicial consideration of whether the individual defendant and the community would benefit by intervention in lieu of conviction rather than conviction is permanently and systematically foreclosed. Here, Rice, at only 19 years of age, a first offender, had her driver's license suspended for seven months, was fined $250, and has two felony convictions of record. I agree with Rice that the objectives of her sentence of supervision and drug treatment could have been accomplished pursuant to a R.C. 2951.041 treatment plan.

{¶ 24} I would reverse and remand for a hearing on eligibility utilizing the correct statutory criteria and with a directive that the trial court conduct an individualized and meaningful review of amenability.