[Cite as State v. Davis, 2017-Ohio-8479.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 105129 

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

KENNETH R. DAVIS, JR.

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-14-591134-A 

BEFORE: Kilbane, P.J., Stewart, J., and Blackmon, J. 

RELEASED AND JOURNALIZED: November 9, 2017 
APPELLANT

Kenneth R. Davis, Jr., pro se 

16410 Scottsdale Boulevard 

Shaker Heights, Ohio 44120 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Eben McNair 

Assistant County Prosecutor 

The Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, P.J.: 

{¶1} Defendant-appellant, Kenneth R. Davis, Jr. (“Davis”), pro se, appeals the 

trial court’s imposition of a five-day detention in response to his positive drug tests for 

marijuana while on intervention in lieu of conviction (“ILC”). Davis also appeals the 

trial court’s denial of his motion to withdraw his guilty plea. For the reasons set forth 

below, we affirm. 

{¶2} In November 2014, Davis was indicted on four counts of trafficking and 

two counts of drug possession. In April 2015, Davis pled guilty to the indictment, and 

the trial court granted his request for ILC under R.C. 2951.041. The trial court stayed the 

proceedings pending Davis’s successful completion of the ILC program and placed Davis 

under the supervision of the probation department for one year, imposing various 

conditions. 

{¶3} In August 2015, the trial court set a hearing in response to a probation 

department report that Davis had tested positive for marijuana. The trial court continued 

this hearing and granted Davis’s request to seek out and enroll in an intensive outpatient 

treatment program. The trial court gave Davis three weeks to coordinate this with his 

probation officer and to provide verification of his enrollment in a treatment program to 

the court. The trial court warned Davis that his failure to do so, or to test positive for 

anything other than marijuana, “due to extended presence in [Davis’s] body,” would 

result in termination from ILC. The record indicates that the hearing was not held. 
{¶4} In February 2016, the trial court held a hearing and found that Davis had 

tested positive for marijuana a second time. At this hearing, the trial court continued 

Davis in the ILC program and extended Davis’s participation in ILC for six months. The 

trial court also warned Davis that any future positive test results for marijuana may result 

in a county jail detention of at least five days. 

{¶5} In March 2016, the trial court held a hearing, for which Davis did not 

appear. The trial court issued a capias. In April 2016, the trial court held the hearing, at 

which Davis appeared, and found that Davis tested positive for marijuana a third time. 

The trial court then imposed a five-day jail detention on Davis. The trial court ordered 

Davis to report to county jail on April 29, 2016, and further ordered that he be released on 

May 4, 2016. The trial court again continued Davis in the ILC program with prior 

conditions. 

{¶6} In July 2016, the trial court held a violation hearing. Davis waived 

probable cause and the trial court found him in violation of the terms of ILC “due to 

repeated positive drug tests and negative attitude towards the ILC program.” The trial 

court terminated Davis from the ILC program and made findings of guilt on all counts of 

the indictment in light of Davis’s April 2015 guilty plea. The trial court referred Davis 

to the probation department for a presentence investigation report and scheduled a 

sentencing hearing. 

{¶7} In August 2016, Davis filed a pro se “motion to dismiss or as an alternative 

motion to withdraw * * * guilty plea with request for appointed counsel to join in on 
instant motion.” The trial court never ruled on this motion. In October 2016, the trial 

court sentenced Davis to community control. 

{¶8} It is from the October 2016 sentencing entry that Davis now appeals. He 

raises the following assignments of error for our review: 

Assignment of Error One 

[The trial] court erred by imposing a five-day jail term on [Davis] when no 

finding of guilt was entered; while the [February 5, 2016] journal entry was 

void on its face. 

Assignment of Error Two 

[The trial] court erred by not dismissing the case or as an alternative letting 

[Davis] withdraw his guilty plea. 

{¶9} In the first assignment of error, Davis argues that R.C. 2951.041, which 

governs the ILC programs, does not authorize the trial court to impose a jail term for an 

offender on ILC for a positive drug test without first making a finding of guilt, and 

therefore, the trial court’s entry ordering he be detained in jail for five days is void. He 

argues that as a result of this void sanction his conviction and sentence are also unlawful 

and should be vacated. 

{¶10} As an initial matter, we note the record demonstrates that the trial court 

judge exhibited great patience with Davis. Despite Davis’s repeated positive drug tests 

for marijuana, the judge generously gave him several opportunities to complete the ILC 

program and to avoid a felony conviction by extending Davis’s participation in the 

program. The trial court warned Davis that “any future positive marijuana test results 

may result in a jail sanction of at least [five] days” and ordered him to serve five days in 
jail after testing positive for marijuana for a third time. It is clear to this court that the 

trial court took great care in attempting to guide Davis toward sobriety and the successful 

completion of the ILC program after each relapse. We further note that “ILC 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. Massien, 125 Ohio St.3d 204, 

2010-Ohio-1864, 926 N.E.2d 1282, ¶ 9, citing R.C. 2951.041(A)(1). The Ohio Supreme 

Court has summarized R.C. 2951.041, which governs ILC programs, as follows: 

If, after a hearing, the trial court determines that an offender is eligible for 

ILC, then it shall accept the offender’s guilty plea, place the offender under 

the general control and supervision of the appropriate probation or other 

qualified agency, and establish an intervention plan for the offender. R.C. 

2951.041(C) and (D). The intervention plan shall last at least one year, 

during which the offender is ordered to abstain from alcohol and illegal 

drug use, to participate in treatment and recovery-support services, and to 

submit to regular random testing for drug and alcohol use. 

R.C. 2951.041(D). If the offender successfully completes the intervention 

plan, the trial court shall dismiss proceedings against the offender without 

an adjudication of guilt and may order the sealing of records related to the 

offense. R.C. 2951.041(E). If the offender fails to comply with any term 

or condition imposed as part of the intervention plan, the court shall enter a 

finding of guilt and impose the appropriate sanction. R.C. 2951.041(F). 

Id. 

{¶11} R.C. 2951.041(D) specifically provides: 

If the court grants an offender’s request for intervention in lieu of 

conviction, the court shall place the offender under the general control and 

supervision of the county probation department, * * * as if the offender was 

subject to a community control sanction imposed under [R.C. 2929.15, 

2929.18, or 2929.25]. 

(Emphasis added.) 
{¶12} This court has previously determined that ILC is not a form of community 

control or probation. State v. Ingram, 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967, ¶ 

13. In reaching this conclusion in Ingram, 

we recognized that (1) the community control statutes of R.C. 2929.15 

through 2929.18 do not describe or contemplate ILC; and (2) ILC was 

created not as a punishment, but rather, to provide an opportunity for 

first-time offenders to receive help with their addiction without the 

ramifications of a felony conviction. 

State v. Fonseca, 8th Dist. Cuyahoga No. 101174, 2015-Ohio-306, ¶ 14. 

{¶13} This court observes that relapse is an extremely common, and often 

inevitable, aspect of recovery from drug addiction. 

“In enacting R.C. 2951.041, the legislature made a determination that when 

chemical abuse is the cause or at least a precipitating factor in the 

commission of a crime, it may be more beneficial to the individual and the 

community as a whole to treat the cause rather than punish the crime.” 

Massien at ¶ 10, quoting State v. Shoaf, 140 Ohio App.3d 75, 77, 746 N.E.2d 674 (10th 

Dist.2000). 

{¶14} Here, the trial court’s order that Davis be detained for five days in the 

county jail after his second relapse was clearly intended as a means of rehabilitation and 

treatment. In ordering Davis to spend five days in county jail, the trial court told Davis 

“you have a problem and we’re trying to help you fix it[.]” Moreover, the trial court was 

clearly invested in trying to empower Davis to remain drug free and avoid a felony 

conviction. It explained to Davis the collateral sanctions of a felony record  “if I tag 

you with this felony, good luck getting a job.” 
{¶15} We find that the trial court intended its order of the five-day jail stay as 

motivation for Davis to remain sober. The trial court made every attempt to empower 

Davis to embrace sobriety and avoid a felony conviction, but ultimately determined that 

his “bad attitude” toward the program warranted termination from ILC and imposition of 

community control. 

{¶16} Especially in light of the current opioid crisis, a trial court’s ability to order 

rehabilitation in an attempt to guide an offender toward a path of sobriety after relapse is 

necessary to make ILC an effective means of treatment for drug addiction. Accordingly, 

Davis’s first assignment of error is overruled. 

{¶17} In the second assignment of error, Davis argues that the trial court abused its 

discretion in failing to hold a hearing on his pro se motion to dismiss, alternatively styled 

as a motion to withdraw his guilty plea. Davis also asserts that the trial court abused its 

discretion in not allowing him to withdraw his guilty plea. 

{¶18} The record reflects that Davis was represented by counsel when he filed his 

pro se motion. This court has previously held that “a defendant has the right to counsel 

or the right to act pro se; however, a defendant does not have the right to both, 

simultaneously, which is known as ‘hybrid representation.’” State v. Wyley, 8th Dist. 

Cuyahoga No. 102889, 2016-Ohio-1118, ¶ 8, citing State v. Mongo, 8th Dist. Cuyahoga 

No. 100926, 2015-Ohio-1139,  13. Accordingly, when a criminal defendant is 

represented by counsel, a trial court may not entertain a pro se motion filed by a 
defendant. Id., citing State v. Washington, 8th Dist. Cuyahoga Nos. 96565 and 96568, 

2012-Ohio-1531,  11. 

[W]here a defendant who is represented by counsel files pro se motions and 

there is no indication that defense counsel joins in those motions or 

indicates a need for the relief sought by the defendant pro se, such motions 

are not proper and the trial court may strike them from the record. 

State v. Davis, 10th Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12. 

{¶19} Davis contends he was unrepresented when he filed his pro se motion, and 

therefore, his motion was properly before the trial court. He asserts that the attorney 

appointed by the trial court to represent him at the July 2016 violation hearing was not 

assigned to represent him at the scheduled sentencing hearing in August 2016, and 

therefore, he was unrepresented in the intervening period in which he filed his pro se 

motion. 

{¶20} The record reflects that the trial court terminated Davis from ILC, made a 

finding of guilt, and set a date for sentencing at the July 2016 violation hearing. At the 

hearing, the trial court told appointed counsel he would be appointed to “represent 

[Davis] on the sentencing.” 

{¶21} Based on the foregoing, we find that Davis was represented by appointed 

counsel when he filed his pro se motion. Moreover, there is no indication that his 

appointed counsel joined his motion. Therefore, Davis’s pro se motion was not properly 

before the trial court, and the trial court did not abuse its discretion by denying his 

motion. 

{¶22} Accordingly, the second assignment of error is overruled. 
{¶23} Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MARY EILEEN KILBANE, PRESIDING JUDGE 

MELODY J. STEWART, J., and 

PATRICIA ANN BLACKMON, J., CONCUR