[Cite as State v. Phillipeck, 2013-Ohio-2001.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. John W. Wise, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 12 CAA 08 0060 

FRANCIS PHILLIPECK : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware County 

Court of Common Pleas, Case No. 

11CR-I-12-0625 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: May 5, 2013 

APPEARANCES: 

For Defendant - Appellant: For Plaintiff - Appellee: 

BRIAN G. JONES CAROL HAMILTON O’BRIEN 

The Law Office of Brian Jones Prosecuting Attorney 

2211 U.S. Highway 23 North PETER B. RUFFING 

Delaware, OH 43015 Assistant Prosecuting Attorney 

 140 N. Sandusky Street 3rd

 Floor 

 Delaware, OH 43015 

 
 

Baldwin, J. 

{¶1} Appellant Francis Phillipeck appeals a judgment of the Delaware County 

Common Pleas Court convicting him of possession of heroin (R.C. 2925.11(A)) and 

theft (R.C. 2913.02(A)(1)) upon a plea of guilty and sentencing him to a period of 

community control not to exceed three years. 

STATEMENT OF FACTS AND CASE 

{¶2} On December 2, 2011, appellant was indicted by the Delaware County 

Grand Jury with possession of heroin and theft. Appellant stole a toy gun from a 

Meijer’s store late at night, when he was intoxicated from drug use. He had a spoon 

and needle containing heroin in the pocket of his pants at the time of his arrest. 

{¶3} Appellant entered a plea of guilty to both charges and sought treatment 

in lieu of conviction (ILC). The case proceeded to a hearing on his motion for ILC. 

The court found appellant was technically eligible for ILC pursuant to R.C. 2951.041. 

The court noted that appellant, who was 25 years old, had a drug problem for an 

extensive period of time, and that the information in the medical assessment and presentence investigation indicated that ILC might not demean the seriousness of the 

offenses and might reduce recidivism. 

{¶4} However, the trial court denied ILC for four reasons: appellant’s long 

history of drug use, appellant’s lack of commitment to treatment in the past even 

though his family has insurance to cover residential treatment, appellant’s refusal to 

take responsibility for the death of his girlfriend who died of an overdose, and the 

court’s belief that appellant stole the toy gun intending to use it to commit an additional 

theft. 
{¶5} Appellant assigns one error on appeal: 

{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE 

APPELLANT TREATMENT IN LIEU OF CONVICTION WHEN THE COURT DENIED 

THE REQUEST BECAUSE MR. PHILLIPECK HAD A LONG HISTORY OF DRUG 

USE, HE LACKED COMMITMENT TO TREATMENT EVEN THOUGH HE HAD 

INSURANCE, HE REFUSED TO TAKE RESPONSIBILITY FOR THE DEATH OF HIS 

GIRLFRIEND, AND STOLE A TOY GUN AS A MEANS OF GETTING ADDITIONAL 

FUNDS FOR HIS DRUG HABIT.” 

I. 

{¶7} Appellant, in his sole assignment of error, argues that the trial court 

abused its discretion in denying his request for ILC. 

{¶8} R.C. 2951.041 provides: 

{¶9} “(A)(1) If an offender is charged with a criminal offense and the court 

has reason to believe that drug or alcohol usage by the offender 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. The request shall 

include a waiver of the defendant's right to a speedy trial, the preliminary hearing, the 

time period within which the grand jury may consider an indictment against the 

offender, and arraignment, unless the hearing, indictment, or arraignment has already 

occurred. 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 eligibility for intervention in lieu of 

conviction and recommending an appropriate intervention plan. 

{¶10} “(B) An offender is eligible for intervention in lieu of conviction if the 

court finds all of the following: 

{¶11} “(1) The offender previously has not been convicted of or pleaded guilty 

to a felony, previously has not been through intervention in lieu of conviction under this 

section or any similar regimen, and is charged with a felony for which the court, upon 

conviction, would impose sentence under division (B)(2)(b) of section 2929.13 of the 

Revised Code or with a misdemeanor. 

{¶12} “(2) The offense is not a felony of the first, second, or third degree, is not 

an offense of violence, 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, a 

mandatory term of local incarceration, or a mandatory term of imprisonment in a jail. 

{¶13} “(3) The offender is not charged with a violation of section 2925.02, 

2925.03, 2925.04, or 2925.06 of the Revised Code and is not charged with a violation 

of section 2925.11 of the Revised Code that is a felony of the first, second, or third 

degree. 

{¶14} “(4) The offender is not charged with a violation of section 2925.11 of 

the Revised Code that is a felony of the fourth degree, or the offender is charged with 
a violation of that section that is a felony of the fourth degree and the prosecutor in the 

case has recommended that the offender be classified as being eligible for 

intervention in lieu of conviction under this section. 

{¶15} “(5) The offender has been assessed by an appropriately licensed 

provider, certified facility, or licensed and credentialed professional, including, but not 

limited to, a program licensed by the department of alcohol and drug addiction 

services pursuant to section 3793.11 of the Revised Code, a program certified by that 

department pursuant to section 3793.06 of the Revised Code, a public or private 

hospital, the United States department of veterans affairs, another appropriate agency 

of the government of the United States, or a licensed physician, psychiatrist, 

psychologist, independent social worker, professional counselor, or chemical 

dependency counselor for the purpose of determining the offender's eligibility for 

intervention in lieu of conviction and recommending an appropriate intervention plan. 

{¶16} “(6) The offender's drug or alcohol usage 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. 

{¶17} “(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. 

{¶18} “(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, and 

the offender previously has not been treated for drug abuse. 
{¶19} “(9) The offender is willing to comply with all terms and conditions 

imposed by the court pursuant to division (D) of this section.” 

{¶20} A trial court has discretion to determine whether the particular defendant 

is a good candidate for intervention in lieu of conviction. State v. Schmidt, 149 Ohio 

App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113. An abuse of discretion involves more 

than an error of judgment; it connotes an attitude on the part of the court that is 

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 

217, 219, 450 N.E.2d 1140, 1141(1983). 

{¶21} We find that the trial court did not abuse its discretion in denying 

appellant's request for ILC. At 25 years of age, appellant already had a long, 

pervasive history of drug use. While appellant is correct that a history of drug use is 

an element for eligibility, the court could also use this factor to conclude that 

recidivism is likely, particularly because appellant had recently taken part in an outpatient drug treatment program which was unsuccessful, and had not sought 

residential treatment prior to his arrest despite coverage under his mother’s insurance 

plan. The court speculated that appellant stole the gun intending to use it to commit 

another offense. Appellant stated at the hearing that he was so intoxicated at the time 

of the offense that he had no idea why he was stealing the toy gun and had no idea 

what he was doing. The trial court was in a better position than this court to assess 

appellant’s credibility, and the trial court clearly believed he intended to use the toy 

gun to commit another theft offense while he was intoxicated on heroin. 

{¶22} It is apparent from the transcript of the ILC hearing that the court did not 

believe appellant truly was committed to treatment and that treatment alone would not 
substantially reduce the likelihood of any future criminal activity. Treatment was built 

into his community control sentence; however, the court apparently believed appellant 

needed a clearer understanding of the gravity of his drug use and the potential 

seriousness of the consequences of his actions while intoxicated than he would 

receive from treatment alone. The trial court did not abuse its discretion in denying 

appellant’s request for treatment in lieu of conviction. 

{¶23} The assignment of error is overruled. The judgment of the Delaware 

County Common Pleas Court is affirmed. Costs assessed to appellant. 

By: Baldwin, J. 

Wise, P.J. and 

Delaney, J. concur. 

HON. CRAIG R. BALDWIN 

HON. JOHN W. WISE 

HON. PATRICIA A. DELANEY 

rad/CRB 

 

 
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 

 Plaintiff - Appellee 

 

-vsFRANCIS PHILLIPECK 

 Defendant - Appellant 

 

:

:

:

:

:

:

:

:

:

:

:

:

 JUDGMENT ENTRY 

 Case No. 12 CAA 08 0060 

 For the reasons stated in our accompanying Opinion on file, the judgment of the 

Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant. 

 

HON. CRAIG R. BALDWIN 

HON. JOHN W. WISE 

HON. PATRICIA A. DELANEY