[ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Yontz , Slip Opinion No. 2022

- Ohio

- 2745.]

NOTICE This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2022

- O HIO - 2745
T HE S TATE OF O HIO , A PPELLEE v . Y ONTZ , A PPELLANT . [ Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Yontz , Slip Opinion No. 2022

- Ohio

- 2745 .]
R.C. 2951.041

—

Intervention

- in

- lieu

- of

- conviction ( “

ILC ” ) supervision

— Order denying the modification of the conditions of ILC is not a final
, appealable
order

— Court of appeals’ judgment vacated. (No. 202 1

- 0 382

— Submitted March 29 , 202 2

— Decided August 11 , 202 2 .)
A PPEAL from the Court of Appeals for Guernsey County,

No. 20CA000010 , 2021

- Ohio

- 382

.

_____________________ O’C ONNOR , C. J. {¶ 1} A ppellant, Vernon L. Yontz II , challenges the denial of his motion to modify the terms of his intervention

- in

- lieu

- of

- conviction (“ILC”) supervision

. The Fifth District Court of Appeals determined that the appeal was moot and
declined to address the merits. Yontz asks this court to find that he need not violate the conditions of his supervision before he may challenge th ose conditions in court

.S UPREME C OURT OF O HIO

2 {¶ 2} Because we determine that Yontz is not challenging a final
, appealable order, we vacate the court of appeals ’ judgment

.

Facts and procedural background {¶ 3} In 2017, Yontz was charged with aggravated possession of drugs, a felony of the fifth degree, in violation of R.C. 2925.11 (C)(1)(a)

. He was alleged to
have had n ine oxycodone pills in his possession

. {¶ 4} On June 5, 2019, Yontz requested ILC under R.C. 2951.04 1 . The request stated, among other things, that Yontz was “willing to comply with all terms and conditions imposed by [the] Court,” “that an intervention plan ma y be established for him,” “that he [would] be required to abstain from the use of illegal drugs and alcohol [,] and that he [would] have to submit to regular random testing for drug and alcohol use.” The state did not oppose Yontz’s request. {¶ 5} On September 23, 2019, f ollowing a hearing, the trial court granted the request for ILC. The entry ordered that Yontz be placed on “probation

- like supervision” for at least one year, with the possibility to extend it up to three years, “under any terms and c onditions the Adult Probation Department deems appropriate.” The entry stated that in addition to Yontz ’s being subject to the standard terms and conditions, he would also be subject to the following specific
terms and conditions:

A. Defendant shall co ntinue in, and successfully complete, the drug/alcohol treatment program through Noble Behavioral
H ealth Choices. Defendant shall cause regular progress reports, together with verification of successful completion of said program, to be submitted to his s upervising officer

. B. Defendant shall abstain from consuming alcohol and from using illegal drugs during his period of supervision

.January Term, 2022

3 C. Defendant shall be subject to random drug/alcohol screenings.

{¶ 6} The entry also notified Yontz that any violation of the t erms of his supervision could result in a judgment of conviction being entered, followed by the imposition of a prison sentence of up to 12 months. The entry ordered Yontz to
meet with the Guernsey County probation department immediately following the
hea ring to sign a document outlining the terms and conditions of his supervision. Finally, the entry noted, “All further proceedings shall be STAYED in this case pending Defendant’s successful completion of drug/alcohol treatment or further
Orders of this Co urt.” (Capitalization sic.) {¶ 7} Also on September 23, 2019, Yontz signed the Guernsey County adult probation department’s written policy on prescription medications. That document stated, “If a doctor prescribes you any type of medication, it is your responsibility to inform him/her that you are in recovery and receive random drug tests.” It also stated, “Suboxone will not be an approved medication. If you are currently prescribed Suboxone , you must see your physician to obtain a safe titration plan. You must be weaned off within 60 to 90 days.” Yontz had reported hav ing a prescription for Suboxone as of August 20, 2019

. {¶ 8} On March 23, 2020, Yontz moved to modify the terms of his ILC supervision. Specifically, he requested that the terms of his supervision be modified to permit him to demonstrate that his access to Suboxone is medically necessary. The motion noted that he had used opiates for more than 20 years and was diagnosed in 2017 with severe opioid

- use disorder. The motion asserted that
the conditions of ILC supervision , specifically the condition that Yontz stop the use of Suboxone, violated Title II of the Americ ans with Disabilities Act , 42 U.S.C. 12101 et seq., and the Equal Protection C lauses of both the United States and Ohio
Constitutions. In response, the state argued that Yontz was not a “protected person”S UPREME C OURT OF O HIO

4 under the Americans with Disabilities Act
, because it claimed he had tested positive for THC while on supervision. The trial court ultimately denied Yontz’s motion. {¶ 9} On appeal, Yontz reasserted his Americans with Disabilities Act and Equal Protection arguments regarding the probation department’s policy on
Suboxone use. Yontz asked the court of appeals to reverse the trial court’s denial of the motion to modify and to remand for the trial court to determine whether Yontz’s access to Suboxone is medically necessary. In response, the state asserted that the appeal was moot because Yontz had completed his treatment plan, had “successfully navigated the intervention in lie u of conviction process,” and was no longer on S uboxone therapy. On the merits, the state argued that the trial court did not err in denying Yontz’s motion. {¶ 10} The Fifth District Court of Appeals concluded that the appeal was

moot and explained :

In the case at bar, no evidence was presented in the record that Yontz failed to comply with the September 23, 2019 directive from the probation department concerning tapering off of Suboxone.
There is no evidence that Yontz has used Suboxone after December,
2019. There is no report from Noble [Behavioral Health Choices, Inc.] concerning the medication withdrawal plan (also called a taper) signed by Yontz and the probation department on September 23, 2019. There is no report from either Noble or the Zanesville
Trea tment Center after August 20, 2019. Accordingly, there is no evidence that the trial court needs to modify Yontz’s ILC to include
the use of Suboxone.

2021

- Ohio

- 382 , ¶ 1 9

.January Term, 2022

5 {¶ 11} This court accepted a discretion ary appeal to consider a single proposition of law : “ A person subject to conditions of supervision is not required to violate those conditions in order to challenge their illegality .” See 163 Ohio St.3d 1439, 2021

- Ohio

- 1896, 168 N.E.3d 1197. {¶ 12} In his merit brief, Yontz argue s that the case is not moot , bec ause he is harmed by experiencing the ongoing negative symptoms of opioid

- use disorder while subject to the conditions of supervision. Yontz further argue s that the appeal is ripe for review because his decision to titrate off Suboxone was made only to

co mply with the probation department’s policy and not because medical providers
recommended it . T herefore, Yontz asserts, he h as been unable to continue life

saving treatment. {¶ 13} The state did not file a merit brief and, therefore, was not permitted to partici pate in oral argument pursuant to S.Ct.Prac.R. 17.03

. Analysis {¶ 14} Before we can address the merits of Yontz’s proposition of law, we
must determine whether this appeal stems from a final
, appealable order. This court’s appellate jurisdiction extends only to orders that are final and appealable. Ohio Constitution, Article IV, Sections 2(B)(2) and 3(B)(2). Whether there is a final order is a jurisdictional issue that cannot be waived
, and this court may addr ess it sua sponte

. State ex rel. Sands v. Culotta , 165 Ohio St.3d 172, 2021

- Ohio

- 1137, 176 N.E.3d 735, ¶ 7. To determine whether an order is final and appealable, we look to the requirements of R.C. 2505.02. Id. {¶ 15} R.C. 2505.02(B) describes final orders an d states, in part:

An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:S UPREME C OURT OF O HIO

6 (1) An order that affects a substantial right in an action that
in effect determines the action and prevents a judgment ; (2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment ; * * * (4) An order that grants or denies a provisional remedy and
to which both of the fol lowing apply: (a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy. (b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.

{¶ 16} We conclude that the trial court’s order denying Yontz’s motion to modify the terms of his ILC supervision does not fal l into any of these categories
and therefore was not a final
, appealable order. {¶ 17} Ohio appellate courts have held that a decision granting ILC is not appealable by a defendant under R.C. 2505.02 (B)(1) or R.C. 2505.02(B)(2). See
State v. Slack , 2d Dist. Montgomery No. 28921, 2021

- Ohio

- 974, ¶ 5, citing State v. Hightower

- Goins , 2d Dist. Montgomery No. 28744 (Oct. 7, 2020); State v. Woods
, 2d Dist. Montgomery No. 28479 (Sep t

. 24, 2019); State v. Lewis , 2d Dist. Champaign No. 2016

- CA

- 29, 2017

- Ohio

- 8604, ¶ 3

- 7; State v. Dempsey , 8th Dist. Cuyahoga No. 82154, 2003

- Ohio

- 2579, ¶ 9; State v. Bellman
, 9th Dist. Lorain No. 15CA010525, 2015

- Ohio

- 2303, ¶ 10

. We find these decisions to be persuasive

. {¶ 18} Under a n ILC order, as here, the proceedings are stayed pending a defendant’s successful completion of the terms of ILC. See R.C. 2951.041( C ).January Term, 2022

7 Consequently, an order granting ILC does not contain a conviction or a sentence and, therefore, the criminal case is no t yet complete while a defendant is subject to
the terms of ILC

. Slack at ¶ 4; see also State v. White , 156 Ohio St.3d 536, 2019

- Ohio

- 1215, 130 N.E.3d 247, ¶ 13 (“When valid, a judgment of conviction is a final order under R.C. 2505.02( B )(2)”)

. Accordingly, it cannot be said that the grant of ILC “determines the action” as required under R.C. 2505.02(B)(1)

. {¶ 19} A ppellate courts also have found that an order granting ILC does not satisfy the requirements for a final order under R.C. 2505.02(B) (1) and (B) (2) because it is permissive and, therefore, does not implicate a substantial right. Slack at ¶ 6 ; s ee also In re B.D. , 2020

- Ohio

- 4128, 157 N.E.3d 400, ¶ 9 (1st Dist.) (“With regard to the finality of an order arising under R.C. 2951.041 though, courts uniformly reject the notion that intervention in lieu of conviction satisfies a final order under R.C. 2505.02(B)(2), largely hinging their determinations on the permissive nature of the statute”) ; Bellman at ¶ 10 ( “R.C. 2951.041 is permissive
in nature and confers substantial discretion to the trial court to grant a defendant’s request without providing for appellate review”)

. R.C. 2505.02( A )( 1 ) defines “substantial right” as “ a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect.” R.C. 2951.041 (A)(1) provides that a trial court “ may accept, prior to the entry of a guilty plea, the [defendant’s] request for intervention in lieu
of conviction” i f certain statutory conditions apply. (Emphasis added.) This language demonstrates the permissive nature of ILC; “it is a special opportunity provided to select defendants who are deemed eligible by the trial court.” Dempsey , 2003

- Ohio

- 2579, at ¶ 9. For these reasons, we agree that ILC is not a right to whichS UPREME C OURT OF O HIO

8 a defendant is entitled

. 1 Thus, it cannot be said that an order denying the
modification of the terms of ILC affects a substantial right

. {¶ 20} At least one appellate court has also concluded t hat ILC is not an ancillary proceeding and that, therefore, an order granting ILC cannot meet the definition of a “provision al remedy” required for the type of final order described in R.C. 2505.02(B)(4). Bellman , 2015

- Ohio

- 2303, at ¶ 11. R.C. 2505.02(B)(4)
describes a final order as an order that grants or denies a provisional remedy and that “in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with re spect to the provisional remedy” and does not afford the appealing party a “meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.” Relevant here, R.C. 2505.02(A)(3) defines “ provisional remedy” as “a proceeding ancillary to an action, including
, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, [or] suppression of evidence.” In Bellman , the court concluded
that ILC is n ot an ancillary proceeding “as it does not aid or further the principal proceeding.” Bellman at ¶ 11

. The Bellman court noted that ILC is not a separate
matter from trial on the merits or a proceeding with its own life , in contrast to a preliminary

- injunction proceeding, which is specifically refer red to in the statute as an example of a n ancillary proceeding under th e definition of a provisional remedy

. Id. {¶ 21} To emphasize , Yontz does not challenge the order granting ILC ; he instead challenges the order denying a modification of the terms of ILC. Thus,
even if an order granting or denying ILC i s “a proceeding ancillary to an action” under R.C. 2505.02(A)(3), we cannot say that the order denying the modification

1

. We note that some courts of appeals have found that the state has a substantial right to appeal an order granting ILC. Slack at ¶ 7. Because that scenario is not before us, we do not address the propriety of those decisions.January Term, 2022

9 of the specific terms of ILC “in effect determines the action” or “ prevents a judgment in the action in favor of the appealing party
, ” a s required under R.C. 2505.02(B)(4)(a)

. See
, e.g. , Bellman at ¶ 15 (Moore, J., concurring in judgment only) (noting that Bellman was not challenging the judgment on the provisional remedy, but rather, only a term of the remedy)

. Here, in fact, the court of appeals noted that there was no evidence in the record that Yontz had failed to comply with
the probation department’s directive to titrate off Suboxone and that there was no
evidence Yontz had used Suboxone after December 2019. 2021

- Ohio

- 382, at ¶ 1 4

. And i n Yontz’s merit brief to this court, he represent s that he filed the motion to modify the terms of his ILC supervis ion “three months after he completed his titration off Suboxone pursuant to the Department’s policy.” Thus, we cannot say
that the order denying a modification of a condition of ILC supervision with which
Yontz had already complied prevented a judgment in the action in his favor. Accordingly, we conclude that Yontz has not appealed a final order under R.C. 2505.02(B)(4). {¶ 22} We recognize that Yontz’s brief and the brief filed by amicus curiae detail the significant body of scientific and medical research indi cating why ongoing treatment with Suboxone might provide Yontz, as he describes it in his brief, with “the best possible chance of successful rehabilitation while under local supervision.” But those concerns do not convert the order denying the modification
of the conditions of ILC into a final order.
Conclusion {¶ 23} Because the order denying the modification of the conditions of ILC is not a final appealable order , w e vacate the judgment of the Fifth District Court of Appeals

. Judgment vacated

. K ENNEDY , F ISCHER , D E W INE , D ONNELLY , and S TEWART , JJ., concur.
B RUNNER , J., concurs in judgment only.S UPREME C OURT OF O HIO

10 _________________ Timothy Young, Ohio Public Defender, and Carly M. Edelstein
, Assistant
State Public Defender, for appellant. Sally Friedman and Rebekah Joab
, Legal Action Center
, and David J. Carey
and Freda J. Levenson, American Civil Liberties Union of Ohio Foundation, in support of appellant for amic i curiae Public Health Scholars and Treatment and Recovery Organizations and Professionals

.

_________________