[Cite as State v. Anderson, 2016-Ohio-4651.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO 

 PLAINTIFF-APPELLEE 

VS. 

RYAN DONALD ANDERSON 

 DEFENDANT-APPELLANT 

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CASE NO. 14 BE 0041 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Belmont County, Ohio 

Case No. 13 CR 162 

JUDGMENT: Reversed and Remanded. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Daniel Fry 

Belmont County Prosecutor 

Attorney Helen Yonak 

Assistant Prosecutor 

147-A West Main Street 

Saint Clairsville, Ohio 43950 

For Defendant-Appellant Attorney Nikki Baszynski 

Assistant Public Defender 

250 East Broad Street, Suite 1400 

Columbus, Ohio 43215 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

 

 

 Dated: June 27, 2016 
[Cite as State v. Anderson, 2016-Ohio-4651.]

DeGENARO, J. 

{¶1} In this delayed appeal, Defendant-Appellant, Ryan Anderson, appeals 

the judgment of the Belmont County Court of Common Pleas in which he was 

terminated from intervention in lieu of conviction (ILC) and sentenced to seven years 

imprisonment. Anderson asserts that the trial court erred by terminating ILC and in 

the sentence imposed for the underlying charges. 

{¶2} The State failed to present evidence demonstrating that Anderson 

violated the terms of his intervention plan; thus, the hearing failed to comport with 

basic principles of due process. Accordingly, the judgment of the trial court is 

reversed and the matter remanded for further proceedings. 

Facts and Procedure

{¶3} Anderson was indicted on multiple criminal charges: two counts of theft, 

R.C. 2913.02(A)(1), possession of drugs, R.C. 2925.11(A)(C)(4)(A), forgery, R.C. 

2913.31(A)(3), all fifth-degree felonies, receiving stolen property, R.C. 2913.51(A), 

and misuse of credit cards, R.C. 2913.21(B)(2)(D)(3), both fourth-degree felonies. 

Anderson entered a not guilty plea to all six counts and was appointed counsel. 

Anderson sought treatment, and a report was created by Crossroads Counseling 

Services. Pursuant to a plea agreement, Anderson pled guilty to all six counts, and 

the State did not oppose ILC. The trial court found that Anderson was eligible for 

intervention, and ordered that he remain in rehabilitation at Eastern Ohio Correctional 

Center for not less than a year, but not more than three years, consistent with the 

Crossroads recommendation; however, Anderson was released a few months later 

for a recurring bone infection from a healing wound, which EOCC was not equipped 

to handle. 

{¶4} Shortly thereafter, Anderson's probation officer filed a motion to 

terminate his ILC for failing to comply with the orders of his supervising officer by 

failing to stay inside a hospital building and going outside of his residence. 

{¶5} At the hearing on terminating ILC, in the State's opening remarks the 

prosecutor merely referred the trial court's attention to the violations contained in the 

motion instead of stating them on the record. Further, the prosecutor did not argue for 
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termination, instead stating she would defer to the trial court's discretion. Defense 

counsel's opening statement focused on the reports that Anderson had been 

inserting pencils into his wound to disturb it, insisting instead that Anderson was 

merely using a Q-tip to sterilize his problematic wound. Anderson's counsel further 

advocated that two infractions—stepping outside the hospital to smoke and cutting 

the grass at his grandmother's house where Anderson lived—were not violations 

because Anderson was still on both premises. Assuming arguendo they were 

sanctionable violations, counsel contended they were minor and continued 

participation in intervention was the appropriate action. 

{¶6} At this juncture of the proceedings there had been no testimony or 

evidence presented by either party. Nonetheless, the trial court then stated 

Anderson's intervention in lieu of conviction would be terminated, and that sentencing 

would be at a later date. Only at that point did the prosecutor state that she had two 

witnesses present if the trial court wanted to take testimony. 

{¶7} William Rodriguez, an EOCC employee, testified that upon Anderson's 

arrival, Anderson had mentioned to him he was battling a bone infection. After 

Anderson had been allowed to seek medical treatment for the infection the wound 

had healed, but when Anderson participated in community service shortly thereafter 

the wound opened again. Rodriguez further testified that Anderson had been using 

Q-tips to disturb the wound. 

{¶8} However, the State failed to present any evidence, testimonial or 

otherwise, regarding Anderson's alleged violations of his intervention plan as set forth 

in the motion to terminate, i.e., that Anderson allegedly failed to stay inside a hospital 

building and impermissibly went outside of his residence. 

{¶9} At the sentencing hearing, Anderson and his counsel were afforded the 

opportunity to speak. After reviewing the record, the PSI, and considering the 

principles and purposes of felony sentencing and the sentencing factors, the trial 

court imposed consecutive sentences on all six counts for an aggregate seven-year 

prison term. Two of the seven years were suspended, and Anderson was given 155 
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days of jail time credit. 

Sixth Amendment Right to Counsel

{¶10} Anderson argues in his first of three assignments of error: 

 The trial court violated Mr. Anderson's Sixth Amendment right to 

counsel. 

{¶11} An appellate court reviews the decision of a trial court to remove an 

attorney for an abuse of discretion. State v. Furlow, 2d Dist. No. 03CA0058, 2004-

Ohio-5279, ¶ 13. An abuse of discretion "means an error in judgment involving a 

decision that is unreasonable based upon the record; that the appellate court merely 

may have reached a different result is not enough." State v. Dixon, 7th Dist. No. 10 

MA 185, 2013–Ohio–2951, ¶ 21. 

{¶12} A criminal defendant is entitled to be represented by counsel at critical 

stages of the criminal process. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 

L.Ed.2d 799 (1963). The Sixth Amendment right to counsel does not "attach" until the 

commencement of judicial adversarial proceedings. Brewer v. Williams, 430 U.S. 

387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). A "critical stage" in proceedings can be 

defined as those situations in which there is risk that "counsel's absence might 

derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 

218, 226, 87 S.Ct. 1926, 18 L.Ed.2d (1967). An indigent defendant does not have a 

right to choose a particular attorney; rather, such a defendant "has the right to 

professionally competent, effective representation." State v. Evans, 153 Ohio App.3d 

226, 2003-Ohio-3475, 792 N.E.2d 757, ¶ 30 (7th Dist.), citing State v. Murphy, 91 

Ohio St.3d 516, 523, 747 N.E.2d 765 (2001). 

{¶13} Anderson had two different attorneys during the course of these 

proceedings; the first represented him during the plea proceedings which resulted in 

the trial court's order granting intervention in lieu of conviction. The second attorney 

represented him during the proceedings wherein the trial court terminated ILC and 

imposed a prison sentence. Anderson argues that when the trial court removed his 
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original attorney from the case and appointed new counsel to represent him in the 

subsequent proceedings this deprived him of "the benefit of the attorney who was 

familiar with him, with his case, and with the intervention-in-lieu program." Anderson 

has waived this error because he failed to raise this issue in the trial court. 

{¶14} Generally, errors not raised in the trial court cannot be raised for the 

first time on appeal. State v. Carroll, 7th Dist. No. 95-C-9, 1996 WL 331113, *3 (June 

13, 1996). This rule applies to constitutional errors as well. State v. Williams, 6 Ohio 

St.3d 281, 287, 452 N.E.2d 1323 (1983). However, an appellate court may still 

review the record for plain error. State v. Ferrara, 7th Dist. No. 14 MA 4, 2015-Ohio3822, ¶ 23. "The power afforded to notice plain error, whether on a court's own 

motion or at the request of counsel, is one which courts exercise only in exceptional 

circumstances, and exercise cautiously even then." State v. Long, 53 Ohio St.2d 91, 

94, 372 N.E.2d 804 (1978). A plain error is one that is (1) an obvious defect in a 

proceeding, (2) that deviates from a legal rule, (3) which in turn affects a substantial 

right of the party. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 

306, ¶ 16. The Ohio Supreme Court has interpreted this to mean that "the trial court's 

error must have affected the outcome of the trial." Id.

{¶15} Here, there is no error, let alone plain error. Anderson was not deprived 

of counsel at any point of the proceedings required by the Sixth Amendment. Indigent 

defendants have a right to counsel, but not counsel of their choice. See Evans, 

supra, at ¶ 30; see also State v. Fry, 125 Ohio St.3d 163, 2010–Ohio–1017, ¶ 64, 

State v. Cobb, 9th Dist. No. 26847, 2014-Ohio-1923, ¶ 17; United States v. 

Gonzalez–Lopez, supra, at 151. Accordingly, Anderson's first assignment of error is 

meritless. 

Termination of Intervention in Lieu of Conviction

{¶16} In his second of three assignments of error, Anderson argues: 

 The trial court erred when it revoked Mr. Anderson's intervention 

in lieu of conviction. 
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{¶17} A trial court's decision to terminate an intervention in lieu of conviction 

is reviewed for an abuse of discretion. State v. Lingg, 2d Dist. No. 2011 CA 8, 2011-

Ohio-4543, ¶ 11. An abuse of discretion "means an error in judgment involving a 

decision that is unreasonable based upon the record; that the appellate court merely 

may have reached a different result is not enough." Dixon, supra, at ¶ 21. 

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

allows for "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. Niesen-Pennycuff, 132 Ohio St.3d 416, 2012-

Ohio-2730, 973 N.E.2d 221, ¶ 7; R.C. 2951.041(A)(1). If the trial 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, the adult parole authority, or another appropriate local probation or court 

services agency, if one exists, as if the offender was subject to a community control 

sanction[.]" R.C. 2951.041(D)(emphasis added). If the offender fails to comply with 

the terms of the intervention plan, the supervising authority for the plan "shall advise 

the court of this failure, and the court shall hold a hearing to determine whether the 

offender failed to comply with any term or condition imposed as part of the plan." 

R.C. 2951.041(F)(emphasis added). If the trial court finds that the offender was not 

in compliance with any of the terms and conditions of the intervention plan, then the 

trial court shall sentence the offender to an appropriate sanction under R.C. Chapter 

2929. State v. Davis, 12th Dist. No. CA2013-12-129, 2014-Ohio-2122, ¶ 10. 

{¶19} This case, and the statutory process it involves, presents an issue of 

first impression for our appellate district: what are the fundamental requirements of 

due process when the state, through the probation authority seeks to terminate an 

offender from ILC. 

{¶20} Two of our sister districts have discussed the issue: the Fifth District in 

State v. Burdette, 5th Dist. No. 10 CA 9, 2011-Ohio-4425, and the Ninth District in 

State v. Broadt, 9th Dist. No. 26947, 2014-Ohio-370. Both courts concluded that ILC 
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can be likened to probation. Burdette at *3; Broadt at ¶ 8; fn. 1. We similarly reach 

that conclusion given the plain language of the statute; "the offender is placed under 

the supervision of the county probation department as if the offender was subject to a 

community control sanction." R.C. 2951.041(D)(emphasis added). 

{¶21} Although the Fifth District in Burdette found no due process violation in 

that case, its analysis is instructive and thus we adopt it for this district. 

ILC is comparable to probation, and those who are placed on ILC are 

monitored by the county probation department. R.C. 2951.041(D). In 

order to comport with due process, a trial court must adhere to the 

following conditions when ruling on a defendant's guilt in relation to a 

probation violation: “(a) written notice of the claimed violations; (b) 

disclosure of evidence against the defendant; (c) the opportunity to be 

heard in person and to present witnesses and documentary evidence; 

(d) the right to confront and cross-examine adverse witnesses; (e) a 

neutral and detached hearing body; and (f) a written statement by the 

fact finders as to the evidence relied on and reasons for revocation 

State v. Pavlich, 6th Dist. No. E–10–011, 2011–Ohio–802, at ¶ 25, 

citing State v. McKeithen, 3rd Dist. No. 9–08–29, 2009–Ohio–84, ¶ 22, 

quoting State v. Miller (1975), 42 Ohio St.2d 102, 104, 326 N.E.2d 259, 

quoting Morrissey v. Brewer (1972), 408 U.S. 471, 489, 92 S.Ct. 2593, 

33 L.Ed.2d 484. 

Burdette at *3. 

{¶22} The Ninth District in Broadt similarly held that an offender who was 

facing termination of ILC should be afforded due process protections, finding a 

violation in that case: 

 At its core, due process demands notice and an opportunity to be heard. 

See Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 542 (1985). As is 
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the case with many other statutory provisions requiring a hearing, the 

hearing requirement of R.C. 2951.041(F) contemplates a proceeding 

comporting with the basic requirements of due process, namely, prior 

notice and a meaningful opportunity to be heard. 

Broadt at ¶ 8, citing Burdette.

{¶23} Here, after finding that Anderson met the qualifications for ILC, the trial 

court imposed multiple conditions as a part of the intervention plan in addition to 

those contained in R.C. 2951.041(D). Anderson's probation officer filed a motion to 

terminate intervention, alleging Anderson failed to stay inside the Ohio Valley Medical 

Center on one occasion, and failed to remain inside his residence on several other 

occasions, as directed by the supervising probation officer. However, at the ILC 

termination hearing , the prosecutor merely noted that the alleged violations were set 

forth in the motion to terminate; no argument whatsoever was made. No testimony or 

evidence was offered by the State regarding when and how Anderson allegedly 

violated the terms of his intervention plan. Nor did the State and defense counsel 

enter into any stipulations. Defense counsel merely offered argument against 

termination of ILC. 

{¶24} Termination of Anderson's ILC based upon the record before us fails to 

comport with principles of due process as discussed in Broadt and Burdette. The 

only reference to the specific alleged violations was argument made by defense 

counsel regarding two incidents. Counsel argued these did not constitute violations 

because Anderson never left either premises; he was merely outside of the hospital 

to smoke on one occasion and outside to mow the lawn at his grandmother's house 

where he lived on the other occasion. This does not constitute evidence. Thus, the 

State failed to meet its burden of proof, and, there was no basis for the trial court to 

terminate intervention in lieu of conviction. Accordingly, Anderson's second 

assignment of error is meritorious. 
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Sentencing 

{¶25} In his third and final assignment of error, Anderson argues: 

 The trial court erred when it sentenced Mr. Anderson after 

revoking his intervention in lieu of conviction. 

{¶26} In light of our disposition of Anderson's second assignment of error, this 

assignment of error has been rendered moot. App.R. 12(A)(1)(c). 

{¶27} In sum, Anderson's first assignment of error is meritless, because an 

indigent defendant has the right to competent counsel, but not a specific attorney of 

his choosing. However, Anderson's second assignment of error is meritorious 

because the State failed to present evidence to support the trial court's finding of a 

probation violation. This resolution in turn renders Anderson's third assignment of 

error moot. Accordingly, the judgment of the trial court is reversed, and this case is 

remanded for further proceedings. 

 

Donofrio, P. J., concurs. 

Waite, J., concurs.