Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga
County Prosecutor Anthony Thomas Miranda Anna Woods Assistant
VATTORNEYS FOR APPELLEE Joseph C. Patituce Megan Patituce
Catherine Meehan Patituce & Associates
BEFORE: Stewart, J., McCormack, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
J. STEWART, JUDGE.
This court granted the state of Ohio leave to appeal from the
trial court's order granting defendant-appellee Kyle
Weaver's motion for intervention in lieu of conviction
("ILC") on two counts in a four-count indictment.
In its sole assignment of error, the state argues that the
trial court erred by imposing ILC for two counts when the
indictment also contained two counts that are ineligible for
ILC. We affirm the decision of the trial court.
North Royalton Police initiated a traffic stop after
observing Weaver speeding and weaving in his lane. The
officer stated that Weaver appeared to be "drunk-like,
disoriented, dazed and confused." The officer
administered field sobriety tests, after which he believed he
had probable cause to arrest Weaver and did so. Upon an
inventory search of Weaver's car, the police discovered a
firearm and five rounds of ammunition.
Weaver was charged in a four-count indictment. Count 1
charged improperly handling firearms in a motor vehicle, in
violation of R.C. 2923.16(B), a fourth-degree felony; Count
2, driving while under the influence of alcohol, in violation
of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor; Count
3, driving while under the influence of alcohol, in violation
of R.C. 4511.19(A)(1)(d), a first-degree misdemeanor; and
Count 4, falsification, in violation of R.C. 2921.13(A)(3), a
After initially pleading not guilty to all counts, Weaver
moved the court pursuant to R.C. 2951.041 for ILC on Counts 1
and 4. Counts 2 and 3, DUI offenses, were not eligible for
ILC. See R.C. 2951.041(B)(2). The state does not
dispute that Counts 1 and 4, standing alone, would be
eligible for ILC. However, the state opposed Weaver's
motion, arguing that the ineligible Counts, 2 and 3, caused
Weaver to be ineligible for ILC for Counts 1 and 4.
The court conducted a hearing where Weaver pleaded guilty to
all four counts. The court accepted his pleas, found Weaver
guilty on Counts 2 and 3, and stated that it "will
forbear making adjudication of guilt on Counts 1 and 4, and
instead place Mr. Weaver in [ILC] * * *." Tr. 14-15. As
to Counts 2 and 3, the court stated "I'm going to
sentence him to three days in the driving intervention
program, fine him $375, suspend his licence for six months,
court costs." Tr. 17.
At the outset, we note that it initially appeared that we did
not have a final appealable order. In State v.
Dempsey, 8th Dist. Cuyahoga No. 82154, 2003-Ohio-2579, a
panel of this court dismissed a defendant's appeal
challenging the specific terms of the ILC imposed by the
court below. The panel noted that a person does not have a
right to ILC; but rather "[ILC] is a special opportunity
provided to select defendants who are deemed eligible by the
trial court." Id. at ¶ 9. The panel then
dismissed the defendant's challenge because the trial
court's ILC terms did not affect a "substantial
right" and therefore did not present a final appealable
order pursuant to R.C. 2505.02. Id. at ¶ 8, 11.
The case before us is distinguishable from Dempsey
on procedural grounds. Here, the state is the party appealing
the court's award of ILC. We find the rationale used by
the Twelfth District in a procedurally similar case to be
applicable here. See State v. Casto, 12th Dist.
Clermont No. CA2008-08-033, 2009-Ohio-791. In Casto,
the defendant-appellee pleaded guilty and moved for ILC.
Id. at ¶ 2-4. Over the state's objection,
the court stayed the criminal proceedings and imposed ILC,
and the state appealed. Id. at ¶ 4-5. The
Twelfth District distinguished Dempsey and found it
had jurisdiction over the state's appeal because the
trial court's order granting ILC affected a
"substantial right" of the state, namely the right
to prosecute its criminal cases. Id. at ¶ 10.
If the state was prohibited from appealing, it would have no
recourse to challenge the propriety of ILC in any given case.
Id. The same is true here. Accordingly, there is a
final appealable order.
R.C. 2951.041 provides a mechanism by which a defendant, who
has committed specified crimes, because of chemical abuse,
may seek rehabilitative intervention in favor of a criminal
conviction. This statute represents the legislature's
determination that in such cases it is better to focus on,
and treat, the root causes of the crime rather than just
punish the resulting violation. See State v.
Stanovich, 173 Ohio App.3d 304, 2007-Ohio-4234, 878
N.E.2d 641, ¶ 9 (3d Dist).
R.C. 2951.041(A)(1) prescribes how a person must demonstrate
to the court that his or her alcohol or drug usage "was
a factor leading to the criminal offense" for which ILC
is sought. The statute grants the court discretion whether to
entertain the defendant's request for ILC. Id.
If the court decides to consider the request, the statute