[Cite as State v. Wile, 2017-Ohio-699.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsTONY L. WILE 

 Defendant-Appellant 

JUDGES: 

Hon. W. Scott Gwin, P.J. 

Hon. William B. Hoffman, J. 

Hon. Craig R. Baldwin, J. 

Case No. 16CA41 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Richland County Common 

Pleas Court, Case No. 2007CR0993 D 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: February 23, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

BAMBI COUCH PAGE RANDALL E. FRY 

Prosecuting Attorney 10 West Newlon Place 

Richland County, Ohio Mansfield, Ohio 44902 

By: DANIEL M. ROGERS 

Assistant Prosecuting Attorney 

Richland County Prosecutor’s Office 

38 S. Park Street 

Mansfield, Ohio 44902 
Richland County, Case No. 16CA41 2

Hoffman, J. 

{¶1} Defendant-appellant Tony L. Wile appeals the May 19, 2016 Journal Entry 

finding Appellant guilty of a probation violation and the May 24, 2016 Judgment Entry 

denying Appellant’s motion to dismiss, both entries entered by the Richland County Court 

of Common Pleas. Plaintiff-appellee is the state of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On January 15, 2009, Appellant entered a plea of no contest to the charges 

of possession of Ketamine, a Schedule III controlled substance, in violation of R.C. 

2925.11(A), a third degree misdemeanor; and possession of LSD, a Schedule I controlled 

substance, in violation of R.C. 2925.11(A), a felony of the fourth degree. 

{¶3} Via Judgment Entry filed on March 10, 2009, the trial court ordered 

Appellant undergo intervention in lieu of conviction. Pursuant to the trial court’s entry, 

Appellant would continue drug intervention treatment for a minimum of one year and 

should not be released without approval of the trial court. The entry states, 

 2. As required by O.R.C. 2951.041(D), Defendant is placed under 

the supervision of the Richland County Court Services and subject to 

community control sanctions for a period of at least one year.*** 

{¶4} On November 6, 2013, a bench warrant was issued for Appellant due to his 

failure to complete his intervention in lieu of conviction terms. 

{¶5} On August 7, 2014, the trial court found Appellant guilty of both counts of 

possession of drugs, based upon his prior plea of no contest. Via Sentencing Entry of 

September 18, 2014, the trial court ordered Appellant pay a fine to the Mansfield Police 

Department and restitution to the Mansfield Police Department Lab. The trial court 
Richland County, Case No. 16CA41 3

suspended Appellant’s license for six months, and imposed two years of community 

control. The trial court indicated a violation of community control would lead to a prison 

term of eighteen months. 

{¶6} On January 26, 2016, a bench warrant was issued due to Appellant’s 

violation of community control. 

{¶7} On February 2, 2016, a notice of hearing and probation violation was filed 

by the state, alleging Appellant violated the terms of his community control. 

{¶8} On May 17, 2016, Appellant filed a motion to dismiss. 

{¶9} On May 18, 2016, the trial court conducted a hearing on the probation 

violation. Via Journal Entry filed on May 19, 2016, the trial court found Appellant guilty of 

the probation violation. The trial court imposed sentence of thirty days as to Count 1 and 

eighteen months as to Count 2, to be served concurrently. 

{¶10} On May 24, 2016, via Judgment Entry, the trial court denied Appellant’s 

motion to dismiss. 

{¶11} Appellant appeals, assigning as error, 

{¶12} “I. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S 

MOTION TO DISMISS.” 

{¶13} Appellant maintains the trial court lacked jurisdiction to impose community 

control sanctions exceeding five years and to find Appellant violated the community 

control sanctions. 

{¶14} Pursuant to R.C. 2951.07, a defendant’s total period of probation cannot 

exceed five years. The statute reads, 
Richland County, Case No. 16CA41 4

 A community control sanction continues for the period that the judge 

or magistrate determines and, subject to the five-year limit specified in 

section 2929.15 or 2929.25 of the Revised Code, may be extended. If the 

offender under community control absconds or otherwise leaves the 

jurisdiction of the court without permission from the probation officer, the 

probation agency, or the court to do so, or if the offender is confined in any 

institution for the commission of any offense, the period of community 

control ceases to run until the time that the offender is brought before the 

court for its further action. 

{¶15} Here, Appellant was granted intervention in lieu of conviction, pursuant to 

R.C. 2951.041. The statute reads, in pertinent part, 

 (D) 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, 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 

imposed under section 2929.15, 2929.18, or 2929.25 of the Revised Code. 

The court shall establish an intervention plan for the offender. The terms 

and conditions of the intervention plan shall require the offender, for at least 

one year from the date on which the court grants the order of intervention 

in lieu of conviction, to abstain from the use of illegal drugs and alcohol, to 
Richland County, Case No. 16CA41 5

participate in treatment and recovery support services, and to submit to 

regular random testing for drug and alcohol use and may include any other 

treatment terms and conditions, or terms and conditions similar to 

community control sanctions, which may include community service or 

restitution, that are ordered by the court. 

 *** 

 (F) If the court grants an offender's request for intervention in lieu of 

conviction and the offender fails to comply with any term or condition 

imposed as part of the intervention plan for the offender, the supervising 

authority for the offender promptly 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. If the court 

determines that the offender has failed to comply with any of those terms 

and conditions, it shall enter a finding of guilty and shall impose an 

appropriate sanction under Chapter 2929. of the Revised Code. If the court 

sentences the offender to a prison term, the court, after consulting with the 

department of rehabilitation and correction regarding the availability of 

services, may order continued court-supervised activity and treatment of the 

offender during the prison term and, upon consideration of reports received 

from the department concerning the offender's progress in the program of 

activity and treatment, may consider judicial release under section 2929.20 

of the Revised Code. 

 (G) As used in this section: 
Richland County, Case No. 16CA41 6

 * * * 

 (2) “Community control sanction” has the same meaning as in 

section 2929.01 of the Revised Code. 

 *** 

 (Emphasis added.) 

{¶16} On March 10, 2009, the trial court entered a judgment of intervention in lieu 

of conviction, pursuant to R.C. 2951.041. The statute provides a trial court granting 

intervention in lieu shall place the offender under the general control and supervision of 

the county probation department, the adult parole authority, or other appropriate agency, 

“as if” the offender was subject to community control sanction. We find Appellant’s 

intervention in lieu of conviction, while “as if” on community control, was not equivalent to 

community control imposed as part of a sentence following conviction. Appellant’s 

subsequent sentence based upon his prior plea of no contest did not exceed the five year 

limit on community control. Therefore, we conclude Appellant was not subjected to 

community control sanctions for a period exceeding five years. 

{¶17} Appellant’s assignment of error is overruled. 

{¶18} The judgment of the Richland County Court of Common Pleas is affirmed. 
Richland County, Case No. 16CA41 

7

By: Hoffman, J. 

Gwin, P.J. and 

Baldwin, J. concur