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State v. Weaver

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

STATE OF OHIO PLAINTIFF-APPELLANT
v.
KYLE M. WEAVER DEFENDANT-APPELLEE

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610005-A

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor Anthony Thomas Miranda Anna Woods Assistant County Prosecutors

          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

          MELODY J. STEWART, JUDGE.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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 first-degree misdemeanor.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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).

         {¶9} 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 ...


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