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State v. Boehm

Court of Appeals of Ohio, Fifth District, Licking

June 13, 2017

STATE OF OHIO Plaintiff-Appellant
v.
SHELLY M. BOEHM Defendant-Appellee

         Appeal from the Licking County Court of Common Pleas, Case No. 16 CR 00033

          For Plaintiff-Appellant: KENNETH W. OSWALT LICKING CO. PROSECUTOR BRIAN T. WALTZ

          For Defendant-Appellee: C. JOSEPH McCOY

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Delaney, P.J.

         {¶1} Plaintiff-appellant State of Ohio appeals from the August 11, 2016 Judgment Entry Granting Treatment in Lieu of Conviction of the Licking County Court of Common Pleas. Defendant-appellee is Shelly M. Boehm.

         FACTS AND PROCEDURAL HISTORY

         {¶2} The following facts are adduced from appellant's bill of particulars. This case arose between April 1, 2014 and April 30, 2014, when appellee worked as a maid at a residence in Newark and stole "numerous pills containing amphetamine." Appellee was charged by indictment with one count of theft of dangerous drugs, a felony of the fourth degree pursuant to R.C. 2913.02(A)(2) and (B)(6). Appellee entered a plea of not guilty.

         {¶3} On April 18, 2016, appellee filed a Motion to Continue or Cancel Jury Trial and Set for Plea and Sentencing, stating appellee was eligible for intervention in lieu of conviction (ILC) if approved by the prosecutor, but appellee had not yet heard back from the prosecutor, and she was scheduled to complete a drug assessment and presentence investigation (PSI) interview. Appellant did not respond.

         {¶4} On May 3, 2016, appellee filed a Motion for Order Granting Intervention in Lieu of Conviction pursuant to R.C. 2951.041. Appellant did not respond.

         {¶5} On June 13, 2016, a brief hearing was held and the trial court asked whether appellee had anything to add to her motion for ILC. Defense trial counsel replied that appellee had a prior sealed felony conviction. The trial court granted a continuance to allow the parties time to research the effect of a sealed conviction on a defendant's eligibility for ILC.

         {¶6} On August 10, 2016, appellee filed a bench brief in support of her argument that she was eligible for ILC.

         {¶7} Also on August 10, 2016, a hearing was held on appellee's motions. The record reveals a probation officer was present at the hearing but did not testify. The only witness sworn at the hearing was appellee for the purpose of the plea colloquy. Appellee argued she was eligible for ILC despite the sealed conviction. Appellant responded appellee has two prior felony theft convictions within five years, and argued that even if the prosecutor cannot unseal the prior convictions, the probation department can do so for purposes of the PSI. Appellee responded that the prior convictions arose from a single incident and are one felony and one misdemeanor.[1]

         {¶8} From the bench, the trial court found appellee to be eligible for ILC, finding the sealed prior conviction cannot be used to disqualify her eligibility and no "prosecutorial veto" is available to appellant. The trial court further stated appellee is eligible for ILC based upon a recommendation ...


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