[Cite as State v. Cabannis, 2021-Ohio-1376.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

COLUMBIANA COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

CARLA K. CABANISS, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 19 CO 0039 

 

Criminal Appeal from the 

Municipal Court of East Liverpool, Columbiana County, Ohio 

Case No. 19 CRB 00580 

BEFORE: 

Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed 

Atty. Charles I. Payne, Law Director of East Liverpool, City Prosecuting Attorney, 126

West Sixth Street, East Liverpool, Ohio 43920, for Plaintiff-Appellee, (NO BRIEF FILED),

and 

Atty. Robert McDowall Jr., 415 Wyndclift Place, Youngstown, Ohio 44515, for 

Defendant-Appellant. 
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Case No. 19 CO 0039

 

Dated: 

April 1, 2021 

 

Donofrio, J. 

{¶1} Defendant-appellant, Carla K. Cabaniss, appeals from an East Liverpool 

Municipal Court judgment entry denying her motion for intervention in lieu of conviction 

(ILC). She entered a no contest plea to passing bad checks. 

{¶2} On April 5, 2019, a detective swore out a criminal complaint in the East 

Liverpool Municipal Court alleging that appellant violated R.C. 2913.11 by passing a bad 

check for $800 to her landlord and property owner, Jean Perkins, age 81. 

{¶3} A day before trial, appellant, through counsel, filed a motion to withdraw 

her jury trial demand and requested that the court schedule the case for hearing on a 

motion for ILC under R.C. 2951.041. The trial court canceled the jury trial, ordered the 

ILC motion to be filed by September 18, 2019, and set a hearing date on the motion for 

September 25, 2019. 

{¶4} On August 19, 2019, the court issued a judgment entry continuing the ILC 

motion deadline and hearing in order “[t]o Review the conditions precedent for filing a 

Motin[sic] of Treatment in lieu of conviction for a mental condition.” The court scheduled 

a “Review (Misc. Hearing)” for August 27, 2019. The docket reflects that this hearing was 

labeled a miscellaneous hearing. 

{¶5} On August 23, 2019, appellant’s counsel filed a motion to continue the 

hearing because he had to undergo medical testing. The trial court denied the motion. 

{¶6} On August 27, 2019, appellant appeared at the hearing with substitute 

counsel. The court began the hearing by acknowledging that a motion for ILC was going 

to be filed. The court explained that upon reviewing the ILC statute, R.C. 2951.041, it 

was clear that the court could not grant an ILC motion because Jean Perkins, the victim, 

was over the age of 65, and no judge “can grant or has jurisdiction to grant the Motion in 

Lieu of Treatment” under the statute. The court explained that the factors in R.C. 

2951.041 were conditions precedent to allowing ILC and the seventh factor in the statute, 

the victim’s age, applied because Mrs. Perkins was over the age of 65, which barred an 

ILC motion. 
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Case No. 19 CO 0039

{¶7} At this hearing, the court explained: 

There’s[sic] conditions precedent that the Court has to look at and 

that would prevent the motion in lieu because they’re conditions 

precedent, the Court doesn’t have to grant a motion in lieu, it can do 

it without a hearing. I don’t like doing that. I just don’t think it’s 

necessarily appropriate in regards to this matter. 

So I think you can understand what my quandary is because the case 

law says that if there are any of these conditions precedent, the Court 

has no authority, even if I wanted to grant the motion in lieu. And I’m 

specifically looking at seven of the condition precedents in the 

statute. [8/27/19 Tr. 3]. 

{¶8} When the prosecution responded that a full ILC motion had not actually 

been filed for determination, the court stated: 

Well, no, but the problem is there’s no reason to wait for it to be filed 

because of the conditions precedent. Seven says, that a judge - - if 

you would review with me— 

* * * 

If the victims of the offense is[sic] 65 years of age or older than I 

cannot grant this. So there would be no reason to delay justice and 

go through all of the motions, and CCHs, and all the things that the 

state needs to do if the Perkinses and the victim in this case is over 

the age of 65, and - - regards to this matter. 

 * * * 

There is no point to wait for all of that when I can’t grant it if the victims 

are over the age of 65. So for judicial - - I’m sure all of you read that 

- - so I’m not sure if it was - - obviously, it wasn’t read before the 

motion was filed, that your intent was to file that as soon as you got 
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Case No. 19 CO 0039

all of that done, that you requested the jury trial to be continued 

because of that. 

But I can’t grant this motion in lieu because the victims are, obviously 

over 65. And I would think that the state could corroborate that and 

you would have looked at that and known that. [[8/27/19 Tr. 4-5]. 

{¶9} The prosecution responded that “that is my position as to eligibility. I don’t 

believe that’s a condition precedent for them being able to file it.” The court responded: 

It is. And it is condition precedent for me to grant it. And there is no 

reason to delay. And the case law is attached that is a complete 

ineligibility. So there would be no - - you know, can you file it, but it’s 

going to be - - it would be - - it wouldn’t make any sense, when you 

can’t do it, I can’t grant it, and we’re going to wait and make any of 

these people lack judicial timeliness on this case. 

So, you know, there’s no way I can grant it. I have no power or 

jurisdiction to grant it. So that’s why I brought it forward to make sure 

all of you are aware of that. 

So yes, I can’t grant it. No, you can file it, whatever, it will be 

summarily dismissed. So if you want to do that, feel free. But the 

state agrees that your victims are over the age of 65- - 

* * * 

THE COURT: All right. So if, you know, you want a hearing in the 

future to contest that, I bet I believe everyone knows the Perkinses 

are over the age of 65. So, therefore, the case law says I have no 

authority. It’s a jurisdictional issue. I cannot do it. It’s a condition 

precedent. So, therefore, I cannot do it. And it’s clear on its face. 

So, therefore - - , I’m going to reschedule this hearing for a jury trial, 

and it is going to go forward. So that’s why I had you here so that 
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Case No. 19 CO 0039

we are not waisting[sic] precious judicial time to give a remedy to the 

individuals, and the victims, and the defendant for something that 

cannot be done under Ohio law. 

And the only reason I would continue this any further, and go down 

all of those mental health evaluations, and all of the CCHs, and all 

the other things is if there would be an issue as to the victims not 

being over the age of 65. 

 So that is clearly a condition precedent. There is a plethora of case 

 law to support that. And that’s right in the statute. These are 

 the things that has to be done. And if so than even if I decided to 

 grant it, I don’t. 

And I have the authority as soon as the intent that you’re going to file 

this to deny it without a hearing. I’m not doing that. I gave you the 

benefit of the hearing. 

So in regards to this matter, I’m going to go set this case for jury trial. 

And any motion intervention in this case is overruled for the reasons 

that I stated. [8/27/19 Tr. 5-7]. 

{¶10} At appellant’s request, the trial court allowed her to file a formal motion for 

ILC after the hearing, but stated that it would be summarily dismissed because the victim 

was over the age of 65. 

{¶11} After the hearing, on August 27, 2019, the court issued a judgment entry 

stating that a motion hearing was held: 

To determine the eligibility of filing a Motion in Lieu of Conviction. 

The Motion is overruled. Victim Jean Perkins is over the age of 65 

which is a condition precedent. The prosecutor and defense counsel 

did not dispute that the age of the victim was over 65. No Judge can 

grant or has jurisdiction to grant the Motion in Lieu of Treatment. 
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Case No. 19 CO 0039

{¶12} On August 30, 2019, appellant filed the formal motion for ILC, asserting 

that the actual victim in the case was not Jean Perkins, but was her son-in-law Dennis 

Giambroni, who was the property manager and under the age of 65. The trial court issued 

a judgment entry indicating that the motion would be decided without a hearing and the 

court overruled the motion because Jean Perkins was the named victim in the complaint 

and she was over the age of 65. 

{¶13} On September 4, 2019, the court held a plea and sentencing hearing in 

which it explained the August 27, 2019 hearing: 

As soon as I did review the statutory predicates for that - - one of the 

predicates to move forward was that the victims could not be the age 

of 65 or older. I have no power, or discretion, or jurisdiction - - 

whatever term you want - - to grant that motion even if I would have 

otherwise would have wanted to do so. 

And so, therefore, we had scheduled it far out because I was looking 

at defense counsel needing to get all kinds of mental health 

evaluations. The state would have time to have contrary. 

But when it came apparent that the Court could not grant the motion, 

and that would be an expenditure of judicial time for something that 

could not occur and that the Court - - it isn’t a matter of the Court’s 

discretion, it’s a matter that the Court can’t grant it. 

So, therefore, that motion was overruled because of that 65 years or 

age of older of the written victims, which were listed in the complaint. 

[9/4/19 Tr. 3]. 

{¶14} At the hearing, appellant waived her rights and entered a no contest plea 

to passing bad checks in violation of R.C. 2913.11. She was sentenced to 180 days in 

jail, 150 days suspended, was sentenced to non-reporting probation, and was ordered to 

pay fines and costs. Her sentence was stayed pending this appeal. 

{¶15} On September 27, 2019, appellant filed a timely appeal in this Court. 

Appellant’s first assignment of error states: 
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Case No. 19 CO 0039

THE DENIAL OF DEFENDANT’S ILC MOTION CONSTITUTED 

ABUSE OF DISCRESION[sic] BECAUSE THE TRIAL COURT 

CONDUCTED THE HEARING CONTRARY TO THE ILC STATUTE 

MANDATES AND IN A MANNER WHICH WAS UNREASONABLE 

AND ARBIRTARY[sic]. 

{¶16} Appellant asserts that the court abused its discretion when it denied her 

ILC without a formal motion pending. Appellant submits that even after everyone agreed 

at the hearing that a formal ILC motion was not pending, the court developed its own facts 

and arguments and rendered a decision without evidence, analysis or argument. She 

notes that the court told her that she could still file a formal ILC motion after the hearing, 

but it would be summarily denied based on the victim’s age. Appellant filed the formal 

motion and asserted that the actual victim was Dennis Giambroni, Mrs. Perkins’s property 

manager and son-in-law who accepted appellant’s rent check and who was under the 

age of 65. As evidence, she attached an email to her from Mr. Giambroni in which he 

offered to show her another property. The court issued a judgment entry finding that the 

ILC motion could not be accepted because Jean Perkins was the victim alleged in the 

complaint and is over the age of 65. 

{¶17} Intervention in lieu of conviction is governed by R.C. 2951.041, which 

provides in relevant part that: 

If an offender is charged with a criminal offense, including but not 

limited to a violation of section * * *2913.11 * * * of the Revised Code 

and the court has reason to believe that drug or alcohol usage by the 

offender was a factor leading to the criminal offense with which the 

offender is charged or that * * * at the time of committing that offense, 

the offender had a mental illness, was a person with an intellectual 

disability, or * * * and that the mental illness, status as a person with 

an intellectual disability * * * was a factor leading to the offender's 

criminal behavior, the court may accept, prior to the entry of a guilty 

plea, the offender's request for intervention in lieu of conviction. 
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Case No. 19 CO 0039

R.C. 2951.041(A). Section A also outlines specifics that an ILC request should contain, 

such as a statement from the offender that complies with the statute’s requirements and 

a waiver of a number of the defendant’s rights. The statute goes on to state that: 

The court may reject an offender's request without a hearing. If the 

court elects to consider an offender's request, the court shall conduct 

a hearing to determine whether the offender is eligible under this 

section for intervention in lieu of conviction and shall stay all criminal 

proceedings pending the outcome of the hearing. If the court 

schedules a hearing, the court shall order an assessment of the

offender for the purpose of determining the offender's program 

eligibility for intervention in lieu of conviction and recommending an 

appropriate intervention plan. 

R.C. 2951.041(A)(1). Section B of R.C. 2951.041 provides a list of ten factors that the 

court must examine and find in a defendant’s favor before ultimately determining that he 

or she is eligible for ILC. R.C. 2951.041(B). The relevant factor in this case is: 

(B) An offender is eligible for intervention in lieu of conviction if the 

court finds all of the following: 

* * * 

(7) The alleged victim of the offense was not sixty-five years of age 

or older, permanently and totally disabled, under thirteen years of 

age, or a peace officer engaged in the officer's official duties at the 

time of the alleged offense. 

R.C. 2951.041(B)(7). 

{¶18} ILC is a privilege, not a right. State v. Birch, 12th Dist. Butler No. CA2010-

10-256, 2012-Ohio-543, ¶ 37. The statute “does not create a legal right to ILC; rather, it 

is permissive in nature and provides that the trial court may, in its discretion, grant the 

defendant an opportunity to participate in the early intervention in lieu of a sentence.” 

State v. Nealeigh, 2d Dist. Champaign No. 2010CA28, 2011-Ohio-1416, ¶ 9. Further, 
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Case No. 19 CO 0039

“even if an offender satisfies all the eligibility requirements, a trial court has the discretion 

to determine whether the particular offender is a candidate for ILC.” Id., quoting State v. 

Schmidt, 149 Ohio App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113 (2d Dist.). The statute 

allows the court to deny the offender’s ILC request without a hearing, but if it decides to 

consider the request, the court must conduct a hearing to determine the eligibility of the 

defendant. State v. Cebula, 11th Dist. Lake No. 2013-L-085, 2014-Ohio-3276, ¶17, citing 

R.C. 2951.041(A)(1). 

{¶19} The standard of review for a trial court's decision to deny a request for ILC 

is abuse of discretion. State v. Casto, 12th Dist. Clinton No. CA2008-08-033, 2009-Ohio791, ¶ 12. Abuse of discretion is a determination that the “trial court's decision was 

unreasonable, arbitrary or unconscionable.” State v. Perkins, 12th Dist. Clinton No. 

CA2005-01-002, 2005-Ohio-6557, ¶ 8. However, “a trial court's interpretation and 

application of the statutory eligibility requirements for intervention is a matter of law 

subject to a de novo review.” State v. Geraci, 10th Dist. Franklin No. 04AP-26, 2004-Ohio6128, ¶ 5, citing State v. Sufronko, 105 Ohio App.3d 504, 506, 664 N.E.2d 596 (4th Dist. 

1995). 

{¶20} The language of R.C. 2951.041(A)(1) is “inartful,” because trial courts 

essentially “consider” ILC motions by making any kind of ruling on them. See State v. 

Branch, 2d Dist. Montgomery No. 25261, 2013-Ohio-2350, at ¶ 12. Further, the statute 

leaves unanswered the hearing requirements on an offender’s request for ILC, such as 

whether it is a full evidentiary hearing or just the opportunity to be heard, like in an 

allocution. Id. 

{¶21} Appellant contends that the court’s scheduling of dates for filing a formal 

ILC motion and hearing meant that it agreed to consider a full motion and was required 

to order an assessment and full hearing. We find no merit to this assertion because the 

court continued those dates and scheduled a hearing to review what it called “the eligibility 

of filing an ILC motion.” (See 8/27/2019 J.E.). The mere scheduling of dates concerning 

a formal ILC motion does not obligate the court to proceed with an assessment or formal 

hearing, especially here when the court continued those dates and held a hearing to 

determine whether an ILC motion should be filed. 
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Case No. 19 CO 0039

{¶22} The court also rejects appellant’s assertions that the court abused its 

discretion when it sua sponte continued the ILC deadlines and scheduled the 

“miscellaneous” hearing. Appellant contends that the court did so with little notice to the 

parties and without a clear indication of the nature and scope of the hearing. The trial 

court may sua sponte continue proceedings so long as the record demonstrates that the 

continuance was reasonable, unless the reasonableness cannot seriously be questioned. 

State v. Lee, 48 Ohio St.2d 208, 209, 357 N.E.2d 1095 (1976). The trial court’s 

continuance and scheduling of the “miscellaneous” hearing was reasonable. Appellant 

filed her motion to withdraw jury trial and set the case for an ILC motion hearing on August 

14, 2019. The court scheduled the ILC motion to be filed by September 18, 2019 and 

scheduled a motion hearing for September 25, 2019. The trial court issued a judgment 

entry on August 19, 2019 continuing those and specifically stated that the reason for the 

continuance was to review conditions precedent for filing an ILC motion for a mental 

condition. The court continued the case until August 27, 2019 and indicated that it was 

going to be a “Review (Misc. Hearing).” This Court finds that the eight-day notice for the 

hearing was reasonable and the trial court gave the parties reasonable notice of the 

nature and scope of the hearing when it stated its reason for the continuance. 

{¶23} Appellant further asserts that the trial court abused its discretion when it 

found her ineligible for ILC without the required motion pending before it and developed 

facts and argument without input, evidence, or argument by counsel. She contends that 

the court should have not proceeded to determine the eligibility factors in R.C. 

2951.041(B) without allowing her to present evidence that Mrs. Perkins’s son-in-law was 

the actual victim and he was under the age of 65. 

{¶24} The trial court was aware that a formal motion for ILC was not pending 

before it as its August 27, 2019 judgment entry states that the parties appeared for a 

“Motion hearing to determine the eligibility of filing a Motion in Lieu of Conviction.” The 

court explained at the “miscellaneous” hearing that it could not grant appellant ILC 

because the victim was over the age of 65 as indicated in the criminal complaint. The 

court reasoned that the victim’s age is factor number seven for determining ILC eligibility 

and all ten of these factors were “conditions precedent” to granting ILC. The court 
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Case No. 19 CO 0039

concluded that there was no need for more formal proceedings concerning ILC or a formal 

ILC motion because Mrs. Perkins was over the age of 65. 

{¶25} Appellant asserts that the court had no authority for the procedure it used 

at the hearing by first determining eligibility under R.C. 2951.041(B) and then ordering an 

assessment and intervention plan. However, the Second District Court of Appeals 

appears to have acknowledged such a procedure when highlighting the “inartful” 

language of the R.C. 2951.041 and its lack of clear instructions. 

{¶26} In State v. Branch, 2d Dist. Montgomery No. 25261, 2013-Ohio-2350, ¶ 12, 

the court explained that the language of the statute could be read to find that a court can 

reject an ILC “out of hand without even ‘considering’ statutory factors or discretionary 

factors.” The court found that another reading of the statute was that “if a defendant is 

statutorily eligible (i.e. none of the factors in R.C. 2951.041(B) makes the applicant 

ineligible) and the trial court “considers” the eligible factors being granted for ILC, the 

court must order an assessment and hold a hearing. Id. The trial court in Branch had 

determined without a hearing that the defendant was ineligible for ILC under one of the 

eligibility factors in R.C. 2951.041(B). The court orally denied the defendant’s motion for 

ILC after reviewing an ILC eligibility report subsequent to an assessment. The appellate 

court did not need to resolve the issue of whether the trial court erred in denying a hearing 

on the ILC motion even though it considered an eligibility factor because this issue was 

not raised. Id. ¶ 14. The appellate court ultimately held that even though it disagreed with 

the trial court’s determination, the trial court did not abuse its discretion by denying 

defendant’s motion for ILC based upon the eligibility factor that granting ILC would 

demean the seriousness of the offense. Id. 

{¶27} In State v. Stanton, 2d Dist. Montgomery No. 25298, 2013-Ohio-1825, the 

defendant filed an ILC motion and a hearing was held, where the court stated to counsel 

that the issue of ILC was going to be explored and a brief discussion ensued. At the end 

of that hearing, the court indicated that a status hearing would be held at a later time to 

decide what to do. The court scheduled a status conference and briefly discussed the 

ILC motion during that hearing. Three days later, the court denied the ILC motion. The 

Second District held that because the trial court did not order an assessment as required 

by R.C. 2951.041(A), it did not actually hold a hearing on the motion for ILC. Id. The 
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Case No. 19 CO 0039

court further held that the trial court’s decision to not hold a hearing to determine eligibility 

for ILC was not subject to appellate review because a substantial right was not affected. 

Id. 

{¶28} These cases provide support for the trial court’s procedure and rulings in 

this case. However, in State v. Miles, the case cited by appellant, the Second District 

again looked at ILC and held that “[w]e conclude, since ILC is dependent upon the R.C. 

2951.041(B) eligibility requirements being met, that consideration of an ILC motion occurs 

when the trial court reviews, that is considers, the eligibility requirements.” 2d Dist. 

Greene No. 2016-CA-38, 2017-Ohio-7639, ¶ 12. The Second District held that even 

though an assessment was obtained, the trial court overruled the motion for ILC before it 

was able to review the assessment and thus eligibility factors had not been considered. 

{¶29} The instant case is distinguishable from Miles because in this case, no 

formal motion for ILC was pending before the court. Rather, the court held a 

“miscellaneous” hearing and informed the parties that it was legally impossible for a 

formal motion for ILC to be granted because the victim’s age barred her from 

consideration for ILC. The court found that the criminal complaint established this factor 

because the complaint identified Mrs. Perkins as the victim and listed her birthdate. 

{¶30} This Court agrees that the trial court’s “miscellaneous” hearing, statements 

made at the hearing, and the procedures followed in this case could have been clearer. 

However, R.C. 2951.041(A) is inartfully drafted and its procedures are ill-defined. 

Nevertheless, the court here held a hearing on the viability of filing a formal ILC motion, 

and while it could have denied the request for ILC without any hearing at all, the court 

chose to hold a hearing to explain its reasoning. This Court thus finds that the trial court 

did not abuse its discretion by holding the “miscellaneous” hearing, not ordering an 

assessment, continuing the deadlines for filing a formal ILC motion and hearing, and 

finding that a formal ILC motion could not be granted. 

{¶31} Accordingly, appellant’s first assignment of error lacks merit and is 

overruled. 

{¶32} In her second assignment of error, appellant asserts: 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

DETERMINED THE VICTIMS OF THE UNDERLYLING CRIME 
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Case No. 19 CO 0039

WERE OVER THE AGE OF SIXTY-FIVE RENDERING 

DEFENDANT INELIGIBLE FOR ILC. 

{¶33} Appellant asserts that this Court should conduct a de novo review of the 

trial court’s finding concerning the ages of the victims and find that Mr. Giambroni is the 

victim as appellant rented the property from him, she presented the check to him, and he 

held himself out as the property owner. This Court agrees that ILC eligibility 

determinations are matters of law subject to a de novo review. See State v. Casto, 12th 

Dist. Clinton No. CA2008-08-033, 2009-Ohio-791, ¶ 12, citing State v. Geraci, Franklin 

App. No. 04AP-26, 2004-Ohio-6128, ¶ 5, citing State v. Sufronko 105 Ohio App.3d 504, 

506, 664 N.E.2d 596 (4th Dist. 1995). 

{¶34} In State v. Seawell, 12th Dist. Warren No. CA2019-05-050, 2020-Ohio155, the Twelfth District Court of Appeals applied the de novo standard of review to the 

trial court’s finding that the defendant was eligible for ILC under R.C. 2951.041(B). The 

defendant pled guilty to third-degree felonies and the trial court granted his motion for 

ILC. The state appealed, asserting that the trial court lacked authority to grant ILC 

because Seawell was ineligible under R.C. 2951.041(B)(2), which provides that the 

offenses to which a defendant pleads guilty cannot be first, second, or third-degree 

felonies. In conducting its de novo review, the court held: 

The primary goal of statutory interpretation is to ascertain and give 

effect to the legislature's intent in enacting the statute. State v. 

Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471. This 

court must first look to the plain language of the statute to determine 

the intent. State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 

81, 676 N.E.2d 519 (1997). When the statute's meaning is 

unambiguous and definite, we apply the statute as written and no 

further interpretation is necessary. 

Id. ¶ 6. The court found that the language of R.C. 2951.041(B) was not ambiguous, 

looked to its plain language, and held that the legislature required that an ILC applicant 

meet “all of the ten” requirements and the court therefore erred by granting the defendant 

ILC when he did not meet the R.C. 2951.041(B)(2). Id. 
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Case No. 19 CO 0039

{¶35} Similarly in the instant case, appellant did not meet the eligibility 

requirement in R.C. 2951.041(B)(7) because the victim was 65 years or older. In Duvall, 

2d Dist. Greene No. 2008-CA-80, 2009-Ohio-6580, the defendant was indicted for 

complicity to commit theft from an elderly person. The trial court ordered that she undergo 

evaluation by a clinical psychologist to determine whether she met the requirements for 

ILC. The psychologist recommended that the court deny the motion because Duvall did 

not need treatment and drug abuse did not appear to be a factor in the crime. Id. She 

appealed, and the State argued on appeal that even if the psychologist was wrong, Duvall 

was nevertheless ineligible for ILC because the alleged victims of her crime were over 65 

years old. 

{¶36} The Second District agreed with the State and inferred that the victims were 

65 years of age or over based upon the indictment, which charged Duvall with complicity 

under the theft statute that also contained the definition of an elderly person as a person 

65 years old or older. The court held that “the General Assembly has seen fit to limit the 

trial court’s discretion by making it unlawful for the court to grant a motion for treatment in 

lieu of conviction when the alleged victim is sixty-five years of age or older. It has in effect 

removed the court’s discretion in such a situation -the situation we find here.” Id. at ¶ 5. 

In concluding that the defendant was ineligible for ILC under R.C. 2951.041(B)(7), the 

court reviewed the language of the theft statute concerning theft from an elderly person, 

the indictment, and the definition of “elderly person” in Chapter 2913 to infer that the victim 

in the case was age 65 or older. Id. 

{¶37} In State v. Foreman, the Eighth District reversed part of the trial court’s 

determination that Foreman was eligible for ILC on two counts. One of the seven counts 

charged her with identity theft, with a furthermore clause indicating that the victim of the 

offense was an elderly person. Another count charged her with child endangerment of 

an eleven-year-old. The court referred Foreman to a psychologist and placed her in the 

ILC program. The State appealed, asserting that Foreman was ineligible for ILC because 

the victim of the identity theft was over the age of 65 and the victim of child endangerment 

was under the age of 13, in violation of R.C. 2951.041(B)(7). The appellate court quoted 

R.C. 2951.041(B)(7) and noted the abuse of discretion standard for granting a motion for 

ILC and the de novo standard for determining the factors for eligibility for ILC. The 
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Case No. 19 CO 0039

appellate court reviewed the record and found that Foreman was not eligible for ILC under 

R.C. 2951.041(B)(7) on the identity theft and child endangerment counts because of the 

victims’ ages. While the court found that the trial court erred by granting the motion for 

ILC on these counts, Foreman could still be granted ILC on the other counts. 

{¶38} Appellant here asserts that while a charging instrument is entitled to some 

weight, it is not dispositive of the issue. She cites to State v. Drake, 192 Ohio App.3d 

216, 2011-Ohio-25, 948 N.E.2d 965 (2d Dist.) and State v. Sorrell, 187 Ohio App.3d 286, 

2010-Ohio-1618, 931 N.E.2d 1135 (2d Dist.) in support. However, those cases deal with 

trial courts’ findings that noncustodial parents charged with nonpayment of child support 

were not eligible for ILC. Id. Looking to various statutory and legal dictionary definitions 

of the word “victim,” the language and legislative intent behind R.C. 2951.041(B)(7), and 

Ohio child support laws, the appellate courts held that for purposes of R.C. 

2951.041(B)(7), the victims of the nonpayment of support were not the minor children, but 

the custodial parents to whom the support was supposed to be made. 

{¶39} The courts acknowledged that the indictments in those cases identified the 

minor children, but they looked at the definition of “victim” under R.C. 2930.01(H)(1), 

which is “[a] person who is identified as the victim of a crime or specified delinquent act 

in a police report or in a complaint, indictment, or information that charges the commission 

of a crime and provides the basis for the criminal prosecution...and subsequent 

proceedings to which this chapter makes reference.” Id., quoting R.C. 2930.01(H)(1). The 

appellate courts also looked to the definition of “victim” under R.C. 2743.51 (L)(1), which 

provides that a “victim” is “a person who suffers personal injury or death as a result of *** 

[c]riminally tortious conduct.” R.C. 2743.51(L)(1). They also reviewed the definition of 

“victim” in Black’s Law Dictionary, which provides that a “victim” is “the person who is the 

object of a crime or tort.” (5th Ed. 1979) 1405. The courts reviewed Ohio child support 

laws and procedures and found that when the noncustodial parent does not pay, the 

custodial parent is the payee who does not receive the child support payment. Id. 

{¶40} Finally, the Drake and Sorrell courts looked to the language of and 

legislative intent behind R.C. 2951.041(B)(7) and determined that it did not apply to 

minors between the ages of 13 and 17 and thus its intent was to protect very young 

children. Drake at ¶ 24; Sorrell at ¶ 18. The appellate courts noted that many 
 – 16 – 

Case No. 19 CO 0039

beneficiaries of child support were older than 13 and thus the “legislative intent was not 

to exclude nonsupport cases from ILC eligibility.” Id. 

{¶41} In the instant case, the victim of appellant’s crime in passing the bad check 

was Mrs. Perkins, the landlord and owner of the property that appellant was renting. 

Appellant does not explain how her belief that Mr. Giambroni owned the property or 

whether he held himself out as owner would have had any bearing on who the actual 

injured party was. Further, appellant acknowledges that she was instructed to make her 

rental checks payable to Jean Perkins. Thus, the victim in this case is Mrs. Perkins, who 

is over the age of 65. Appellant is therefore not eligible for ILC under R.C. 2951.041(B)(7). 

{¶42} Accordingly, appellant’s second assignment of error lacks merit and is 

overruled. 

{¶43} In her final assignment of error, Appellant asserts: 

DEFENDANT IS ENTITLED TO A FULL EVIDENTIARY HEARING 

ON ANY ILC REMAND. 

{¶44} Appellant correctly points out that the nature and scope of the ILC eligibility 

hearing procedure is not delineated by the statute, the legislature, or the courts. She 

acknowledges that a court may summarily deny an ILC motion without a hearing. 

However, she uses Rule 32.1 of the Ohio Rules of Criminal Procedure as a framework to 

set forth a 3-step process that the trial court should use if this case is remanded and an 

ILC eligibility hearing is held. 

{¶45} Since we find that appellant’s prior assignments lack merit, appellant’s 

third assignment of error lacks merit and is overruled. 

{¶46} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Robb, J., concurs. 

D’Apolito, J., concurs. 
[Cite as State v. Cabannis, 2021-Ohio-1376.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Municipal Court of East Liverpool of Columbiana County, Ohio, is affirmed. Costs to be 

waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution. 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.