Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-605158-A
ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga
County Prosecutor Anthony Thomas Miranda Adam M. Chaloupka
Assistant Prosecuting Attorneys
ATTORNEYS FOR APPELLEE Mark Stanton Cuyahoga County Public
Defender Jeffrey Gamso Assistant Public Defender
BEFORE: Celebrezze, J., Kilbane, P.J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE.
Plaintiff-appellant, the state of Ohio, brings this appeal
challenging the trial court's judgment granting
defendant-appellee Cherita Foreman's motion for
intervention in lieu of conviction ("ILC").
Specifically, the state argues that the trial court erred by
granting Foreman's motion because the indictment alleged
that the victims of her offenses included an elderly person
or disabled adult and a child under the age of 13. After
thoroughly reviewing the record, we affirm in part, reverse
in part, and remand for further proceedings consistent with
Factual and Procedural History
In Cuyahoga C.P. No. CR-16-605158-A, Foreman was charged
following a traffic stop on March 27, 2016, in Westlake,
Ohio. On April 25, 2016, the Cuyahoga County Grand Jury
returned a seven-count indictment charging Foreman with (1)
identity fraud, a fifth-degree felony in violation of R.C.
2913.49(B)(2), with a furthermore clause alleging that the
victim of the offense "is an elderly person or disabled
adult"; (2) identity fraud, a fifth-degree felony in
violation of R.C. 2913.49(B)(2); (3) endangering children, a
fourth-degree felony in violation of R.C. 2912.22(A), with a
furthermore clause alleging that Foreman was previously
convicted of endangering children in January 2008 in Toledo
Municipal Court; (4) drug trafficking, a fourth-degree felony
in violation of R.C. 2925.03(A)(2), with a juvenile
specification and a forfeiture specification; (5) possessing
criminal tools, a fifth-degree felony in violation of R.C.
2923.24(A), with a furthermore clause alleging that Foreman
had money with purpose to use it in the commission of a
felony and a forfeiture specification; and (6) - (7) forgery,
first-degree misdemeanors in violation of R.C. 2913.31(B)(1).
Foreman pled not guilty to the indictment during her
arraignment on May 9, 2016.
On February 23, 2017, the trial court held a pretrial
hearing. Following the hearing, the trial court referred
Foreman to the court psychiatric clinic for an examination
"in accordance with the provisions of the Ohio Revised
Code, 2951.041 drug dependency/intervention in lieu of
On March 27, 2017, the trial court held a change of plea
hearing. The prosecutor acknowledged that the probation
department "authorized or approved" Foreman for
ILC. (Tr. 3.) However, the prosecutor objected to placement
in ILC, arguing that Foreman was ineligible for ILC because
one of the victims of her offenses was over the age of 65 and
another victim was under the age of 13. The state advised the
trial court that the victim of the fraud counts was
approximately 80 years old and that Foreman had a juvenile in
her car at the time of the traffic stop that was under the
age of 13.
Foreman pled guilty to all seven counts as charged in the
indictment. The trial court held Foreman's guilty pleas
in abeyance and placed Foreman in the ILC program.
On April 28, 2017, the state filed the instant appeal
challenging the trial court's judgment. The state assigns
one error for review:
I. The trial court erred in granting intervention in lieu
where [Foreman] was not eligible for intervention for all
counts in the indictment.