Court of Appeals of Ohio, Fifth District, Licking
from the Licking County Court of Common Pleas, Case No. 16 CR
Plaintiff-Appellant: KENNETH W. OSWALT LICKING CO. PROSECUTOR
BRIAN T. WALTZ
Defendant-Appellee: C. JOSEPH McCOY
JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B.
Hoffman, J. Hon. Earle E. Wise, Jr., J.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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.
On August 10, 2016, appellee filed a bench brief in support
of her argument that she was eligible for ILC.
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
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