[Cite as State v. Sanders, 2022-Ohio-3906.]

STATE OF OHIO ) IN THE COURT OF APPEALS

)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT )

STATE OF OHIO

Appellee

v.

MAXINE ANN SANDERS

Appellant

C.A. No. 30179

APPEAL FROM JUDGMENT

ENTERED IN THE

COURT OF COMMON PLEAS

COUNTY OF SUMMIT, OHIO

CASE No. CR 21 03 1052

DECISION AND JOURNAL ENTRY

Dated: November 2, 2022

SUTTON, Judge.

{¶1} Defendant-Appellant, Maxine Ann Sanders, appeals the judgment of the Summit 

County Court of Common Pleas. For the reasons that follow, this Court reverses. 

I.

Relevant Background

{¶2} In March 2021, Ms. Sanders was indicted on one count of possession of cocaine, in 

violation of R.C. 2925.11(A)/R.C. 2925.11(C)(4), a felony of the fifth degree. At her arraignment, 

Ms. Sanders pleaded not guilty and the trial court set a new signature bond in the amount 

$5,000.00. Ms. Sanders, through counsel, also filed motions requesting intervention in lieu of 

conviction and for a Turning Point, Track 1 screening to be scheduled.1 The trial court, in response 

to these motions, ordered as follows: 

1 The Turning Point Program is a special court in the Summit County Court of Common 

Pleas responsible for handling cases involving drug-using/abusing, non-violent offenders, through 
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Upon the request of [Ms. Sanders] and to aid the offender in establishing eligibility 

for the Intervention in Lieu of Conviction Program, the [c]ourt refers [Ms. Sanders] 

for assessment concerning chemical dependency to Greenleaf Family Services. 

Greenleaf personnel shall be permitted to enter the Summit County Jail to conduct 

said assessment. 

[Ms. Sanders] shall call for an assessment at the Greenleaf Family Center office, at 

330-643-4895, which is scheduled for May 17, 2021[,] at 11:00 a.m.

[Ms. Sanders] shall be screened for Track 1 of the Turning Point Program. 

(Emphasis in the original.)

{¶3} On May 27, 2021, the trial court continued the pretrial in this matter “to allow the 

intervention in lieu of conviction evaluation to be complete.” The trial court also indicated Ms. 

Sanders’ counsel was permitted to withdraw and appointed another attorney to this matter. On 

July 7, 2021, Ms. Sanders’ newly appointed counsel also filed a motion requesting intervention in 

lieu of conviction on Ms. Sanders’ behalf. In the motion, Ms. Sanders submitted she is “eligible 

for intervention pursuant to statute.” 

{¶4} The trial court, on September 8, 2021, held a hearing via video conference on Ms. 

Sanders’ request for intervention in lieu of conviction. At the hearing, Ms. Sanders’ counsel made 

the following argument: 

* * *

Under the new statute, and even the old, last revision, the burden demonstrating 

intervention eligibility is on [Ms. Sanders] and we are here to do that today. 

[Ms. Sanders], under the statute, is currently eligible. If you look at her record, she 

has no felony offense and she is not charged with a felony of violence today. 

So when we look at the underpinnings and the goal of intervention, the point of the 

matter is to move away from sentencing and to move into treatment. 

immediate comprehensive supervision, drug testing, and treatment services, as well as immediate 

sanctions and incentives.
3

 

So under the current statute, the law requires that the [c]ourt [make] a presumption 

that the individual is eligible. So under [s]ubsection [C], the statute says that if the 

[c]ourt finds that the applicant is eligible, it is the presumption that the [c]ourt shall 

grant intervention. The [c]ourt shall presume that intervention in lieu of conviction 

is appropriate. 

In this instance, that presumption should hold. There is no reason that, in my 

humble opinion -- and reason [] a denial should be [issued]. 

Indeed, the statute requires that if the [c]ourt denies an eligible offender’s request 

for intervention, then the [c]ourt shall state the reasons for the denial with 

particularity and a written entry. And that’s, of course, for appellate review. 

So when we look at Ms. Sanders, Ms. Sanders has certain limitations in her abilities. 

Although she has been very attentive to me, sometimes her understanding is a little 

less. 

While in the same breath, if you look at the needs here, when she was detained, first 

of all, she was extremely cooperative with the police. 

Second of all, she made statements -- at least what we have from discovery -- to the 

police, relative to her situation. Really acknowledging and stating that she has a 

drug problem, a drug situation, which led her here. She is charged with possession 

and was in the vicinity of a drug house. 

The other thing is, if my client is convicted of a felony, she’s going to lose housing. 

She will not [] be able to obtain Metropolitan Housing. 

Now, if the [c]ourt grants intervention, as the presumptive statute requires, it’s a 

win/win situation for everybody. So I agree with you, Judge, back in the old days, 

even three years ago, there was a different burden and there was a different 

establishment relative to [c]ourt discretion. 

I acknowledge that the [c]ourt has full discretion in granting or denying 

intervention. The statute gives presumption. Second of all, if there is a denial, there 

has to be sound reason for that. And in this instance, my client’s humble record --

I’m not going to spell that out on the open record today, but you can take a look at 

it. 

Those misdemeanor charges have to do with drugs, they are drug related in many 

ways. So intervention in that instance is a win/win for the people of the [S]tate of 

Ohio, for [Ms. Sanders], for this [c]ourt and everybody else. I am humbly asking 

that you grant her request for intervention. 

* * *
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(Emphasis added.) The State responded by indicating it “really [did not] take any position on 

intervention.” 

{¶5} In denying Ms. Sanders’ request for intervention in lieu of conviction, the trial court 

stated: 

* * *

Well, the [c]ourt, in reviewing this, saw [Ms. Sanders’] 18 prior convictions, albeit 

all misdemeanors. And so I thought she would be a good candidate for the Turning 

Point program Track One. Unfortunately, she’s not. 

But she does have [14 prior misdemeanor convictions for various offenses], as well 

as prior contempt convictions. 

So the [c]ourt feels that excessive prior record is sufficient to overcome the 

presumption for IILC, which is basically geared toward relatively, relatively new 

offenders, so I’m going to deny your motion. 

We’ll put that in the entry[.] But I have no objection to treatment and probation 

and she can get the felony expunged down the line. 

* * *

The trial court then issued a journal entry stating, inter alia, “[u]pon review of [Ms. Sanders’ 

extensive prior record, the [c]ourt finds that [Ms. Sanders] is not eligible for [intervention in lieu 

of conviction].” (Emphasis added.) 

{¶6} On October 20, 2021, Ms. Sanders pleaded no contest to one count of possession 

of cocaine, a felony of the fifth degree. The trial court sentenced Ms. Sanders to complete oneyear of community control with the following conditions: (1) report to adult probation, obey all 

laws, and pay a $20.00 per month fee; (2) provide a DNA sample; (3) refrain from use of alcohol 

and mood-altering drugs; (4) submit to random urinalysis tests; (5) complete assessment for 

alcohol and drug dependency; (6) seek and maintain gainful employment, or enroll in some type 
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of meaningful job training, educational or self-improvement program; and (7) pay court costs and 

restitution if applicable. 

{¶7} Ms. Sanders now appeals raising one assignment of error for our review. 

II.

ASSIGNMENT OF ERROR 

THE COURT ABUSED ITS DISCRETION AND ACTED ARBITRARILY 

AND CONTRARY TO LAW IN DENYING MS. SANDERS AN 

ASSESSMENT FOR INTERVENTION IN LIEU OF CONVICTION AND IN 

DENYING HER REQUEST FOR INTERVENTION. 

{¶8} In her sole assignment of error, Ms. Sanders argues the trial court abused its 

discretion in denying her request for intervention in lieu of conviction. Specifically, Ms. Sanders 

argues she is an eligible offender, pursuant to R.C. 2951.041(B), and that the trial court abused its 

discretion by creating a “new factor” of ineligibility: “too many misdemeanors.” 

{¶9} The State, however, focuses its response on whether the amendment to R.C. 

2951.041, effective April 12, 2021, was wrongly applied retroactively to Ms. Sanders because the 

date of her crime, and the indictment, preceded the effective date of the amendment. The State 

also urges this Court to presume regularity because Ms. Sanders’ assessment and criminal history 

documentation are not in the record. 

{¶10} “[Intervention in lieu of conviction] is a statutory creation that allows a trial court 

to stay a criminal proceeding and order an offender to a period of rehabilitation if the court has 

reason to believe that drug or alcohol usage was a factor leading to the offense.” State v. Dawson, 

9th Dist. Summit No 28311, 2017-Ohio-2833, ¶ 11, quoting State v. Massien, 125 Ohio St.3d 204, 

2010-Ohio-1864, ¶ 9, citing R.C. 2951.041(A)(1). “R.C. 2951.041(B) lists the criteria that a 

criminal defendant must meet to be eligible for [intervention in lieu of conviction].” Dawson at ¶ 

11. We note the only change to section (B) in the amended version of the statute, effective April 
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12, 2021, is the addition of the phrase “is not a felony sex offense” in R.C. 2951.041(B)(2), which 

is not relevant to this matter. Specifically, R.C. 2951.041(B), under both versions of the statute, 

states: 

An offender is eligible for intervention in lieu of conviction if the court finds all of 

the following:

(1) The offender previously has not been convicted of or pleaded guilty to any 

felony offense of violence.

(2) The offense is not a felony of the first, second, or third degree, is not an offense 

of violence, is not a felony sex offense, is not a violation of division (A)(1) or (2) 

of section 2903.06 of the Revised Code, is not a violation of division (A)(1) of 

section 2903.08 of the Revised Code, is not a violation of division (A) of section 

4511.19 of the Revised Code or a municipal ordinance that is substantially similar 

to that division, and is not an offense for which a sentencing court is required to 

impose a mandatory prison term.

(3) The offender is not charged with a violation of section 2925.02, 2925.04, or 

2925.06 of the Revised Code, is not charged with a violation of section 2925.03 of 

the Revised Code that is a felony of the first, second, third, or fourth degree, and is 

not charged with a violation of section 2925.11 of the Revised Code that is a felony 

of the first or second degree.

(4) If an offender alleges that drug or alcohol usage by the offender was a factor 

leading to the criminal offense with which the offender is charged, the court has 

ordered that the offender be assessed by a community addiction services provider 

or a properly credentialed professional for the purpose of determining the 

offender’s program eligibility for intervention in lieu of conviction and 

recommending an appropriate intervention plan, the offender has been assessed by 

a community addiction services provider of that nature or a properly credentialed 

professional in accordance with the court's order, and the community addiction 

services provider or properly credentialed professional has filed the written

assessment of the offender with the court.

(5) If an offender alleges that, at the time of committing the criminal offense with 

which the offender is charged, the offender had a mental illness, was a person with 

an intellectual disability, or was a victim of a violation of section 2905.32 or 

2907.21 of the Revised Code and that the mental illness, status as a person with an 

intellectual disability, or fact that the offender was a victim of a violation of section 

2905.32 or 2907.21 of the Revised Code was a factor leading to that offense, the 

offender has been assessed by a psychiatrist, psychologist, independent social 

worker, licensed professional clinical counselor, or independent marriage and 

family therapist for the purpose of determining the offender’s program eligibility 
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for intervention in lieu of conviction and recommending an appropriate intervention 

plan.

(6) The offender’s drug usage, alcohol usage, mental illness, or intellectual 

disability, or the fact that the offender was a victim of a violation of section 2905.32 

or 2907.21 of the Revised Code, whichever is applicable, was a factor leading to 

the criminal offense with which the offender is charged, intervention in lieu of 

conviction would not demean the seriousness of the offense, and intervention would 

substantially reduce the likelihood of any future criminal activity.

(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.

(8) If the offender is charged with a violation of section 2925.24 of the Revised 

Code, the alleged violation did not result in physical harm to any person.

(9) The offender is willing to comply with all terms and conditions imposed by the 

court pursuant to division (D) of this section.

(10) The offender is not charged with an offense that would result in the offender 

being disqualified under Chapter 4506. of the Revised Code from operating a 

commercial motor vehicle or would subject the offender to any other sanction under 

that chapter.

Further, under both versions of the statute, the trial court retains discretion to determine if an 

eligible offender is a good or appropriate candidate for intervention in lieu of conviction. See R.C. 

2951.041(C); see also Massien at ¶ 11. 

{¶11} Here, in its journal entry, the trial court found Ms. Sanders is not eligible for 

intervention in lieu of conviction because of her “extensive prior record,” which, according to the 

record, consisted of 18 misdemeanors. Based upon the criteria listed in R.C. 2951.041(B), 

however, an extensive prior record consisting of misdemeanor offenses would not disqualify an 

offender from eligibility for intervention in lieu of conviction. As such, the trial court erred as a 

matter of law in finding Ms. Sanders not eligible for intervention in lieu of conviction based upon 

this stated reason. 
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{¶12} Although the State argued, in its brief, the trial court wrongly applied the amended 

version of R.C. 2951.041 in this matter, the State conceded at oral argument that an error of law 

under R.C. 2951.041(B) would “moot” this issue because, other than the minor change noted 

above, the eligibility criteria listed in R.C. 2951.041(B) remain the same in both versions of the 

statute. Further, because the trial court erred as a matter of law, based upon the eligibility criteria 

listed in R.C. 2951.041(B), the fact that certain documents relating to Ms. Sanders’ assessment 

and criminal history are not in the record does not persuade this Court to presume regularity. 

{¶13} In light of the foregoing, we reverse and remand this matter in order for the trial 

court to determine, pursuant to R.C. 2951.041(B), whether Ms. Sanders is eligible, as a matter of 

law, for intervention in lieu of conviction. Further, if Ms. Sanders is an eligible offender, the trial 

court may still then determine whether Ms. Sanders is a good or appropriate candidate for 

intervention in lieu of conviction. 

{¶14} Accordingly, Ms. Sanders’ assignment of error is sustained.

III.

{¶15} For the reasons stated above, Ms. Sanders’ sole assignment of error is sustained and 

the judgment of the Summit County Court of Common Pleas is reversed and remanded for further 

proceedings consistent with this decision. 

Judgment reversed,

and cause remanded. 

There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30.

Costs taxed to Appellee.

BETTY SUTTON

FOR THE COURT

CARR, P. J.

CALLAHAN, J.

CONCUR.

APPEARANCES:

RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant 

Prosecuting Attorney, for Appellee.