[Cite as State v. Sanders , 2020-Ohio-5153.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsKATINA SANDERS Defendant-Appellant JUDGES: Hon. John W. Wise, P. J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

Case No. 2020 CA 002

O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Comm on Pleas, Case No. 2019 CR 414

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 3, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES WILLIAM T. CRAMER PROSECUTING ATTORNEY 470 Olde Worthington Road PAULA M. SAWYERS Suite 200 ASSISTANT PROSECUTOR Westerville, Ohio 43082 20 South Second Street, Fourth Floor Newark, Ohio 43055Licking County, Case No. 2020 CA 002 2

Wise, John, P. J. {¶1} Defendant-Appellant Katina Sanders appeals her conviction and s entence entered in the Licking County Common Pleas Court following a pl ea of guilty to one count of Aggravated Possession of Drugs (Methamphetamine). {¶2} Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS {¶3} On May 26, 2018, Appellant Katina M. Sanders was stopped for sp eeding in Licking County, Ohio. The officer noticed a strong smell of alcohol, bloodshot and glassy eyes, and restricted pupils. Appellant admitted that she had three beers prior to driving. Appellant was removed from the vehicle and failed fiel d sobriety tests. Appellant was arrested for OVI and, during a search incident to arrest, 1 .592 grams of methamphetamine were found on Appellant. {¶4} On May 30, 2019, Defendant-Appellant Katina Sanders was indict ed on one count of Aggravated Possession of Drugs (Methamphetamine), in amounts less than bulk, in violation of R.C. §2925.11(A)(C)(1)(a), a felony of th e fifth degree. {¶5} On October 30, 2019, Appellant filed a Motion for Order Grantin g Defendant Intervention in Lieu of Conviction pursuant to O.R.C. §2951.041

. {¶6} On December 23, 2019, a change of plea hearing was held wherein the trial court noted that Appellant intended to withdraw her plea and en gaged in a standard plea colloquy. During the colloquy, Appellant indicated that she had discussed the charges with her attorney and understood the nature of said charges. Ap pellant also indicated that she had reviewed and signed the admission of guilt form, and ha d no questions about it. The trial court reviewed the constitutional rights which Appell ant was giving up byLicking County, Case No. 2020 CA 002 3

pleading guilty. The court also noted that Appellant was giving up most of her appeal rights, which caused Appellant some confusion. Defense counsel took a moment to speak with her privately, and Appellant then indicated that she under stood. (T. at 6-10). {¶7} The State presented the above facts supporting the charge. The State noted that Appellant agreed that those facts were accurate. (T. at 10 -13). The trial court reviewed the potential sentence, noting a maximum prison term o f one year, a $2,500.00 fine, and an unspecified driver's license suspension. The trial court also mentioned the possibility of judicial release and community control. {¶8} In regard to post-release control, the trial court noted a poss ible term of three years and explained that if Appellant violated post-relea se control, she would be "subject to being returned to the penitentiary for more incarce ration." {¶9} Appellant indicated that she was currently on community control through Williams County, and the trial court explained that a guilty fi nding could be used as a basis to revoke community control in the other case and result in the imposition of a consecutive term of incarceration. After a few more standard pl ea colloquy questions, the court then accepted the guilty plea and found Appellant guilty. (T. at 13-17). {¶10} The trial court then noted that it had already received a prese ntence investigation report, and that Appellant had filed a motion for intervention in lieu of

conviction. The trial court invited defense counsel to address the motion for intervention. {¶11} Trial counsel noted that Appellant met the statutory criteria, and that she had never had an opportunity for a similar program as the major ity of her prior offenses were misdemeanors which did not involve drugs of abuse. Nonethe less, counsel acknowledged that Appellant had some issues with appearing for court, and that she hadLicking County, Case No. 2020 CA 002 4

tested positive for drugs while on pretrial supervision. Counse l also noted that Appellant had a number of legitimate medical conditions which required me dication. Counsel notified the court that Appellant's community control in Willia ms County was for an OVI, and it included a treatment program. {¶12} The State opposed intervention without elaboration. {¶13} The trial court denied intervention, finding that Appellant was not a good candidate, stating that such would be similar to whatever sente nces she would have received for her OVIs. (T. at 21-22). The trial court also foun d that Appellant’s previous problems with reporting for probation and her positive drug tes ts also made her a poor candidate. (T. at 22). {¶14} The trial court then proceeded to sentence Appellant to one yea r of community control with residential treatment for drug and alcoh ol issues, and reserved a prison term of twelve months. The trial court ordered Appellant to remain in jail until the probation department could get her into a suitable treatment pr ogram. In response to a question from the prosecutor, the court noted that the Star Jus tice Center would be the court's first choice for Appellant. (T. at 25-29). {¶15} On January 15, 2020, Appellant sent the trial court a letter as king for new counsel and a bond pending her next hearing. The trial court in terpreted the letter as a request to appeal, denied an appeal bond, and appointed counsel to pursue an appeal. {¶16} In his brief, Appellate counsel states that he had some difficu lty locating Appellant, but eventually made contact at the Star Justice Cent er. Appellant indicated to counsel that she may not want to pursue the appeal because she was almost finished with the Star program. Appellant ultimately indicated that she did not wish to challengeLicking County, Case No. 2020 CA 002 5

her guilty plea, but was considering challenging the denial of intervention. Appellant was going to discuss it with family and contact counsel. However, c ounsel was unable to confirm Appellant's intentions prior to her discharge from the Star Center. Counsel states that he has been unable to locate Appellant subsequent to her d ischarge and has been

unable to confirm her intentions. Counsel moved to withdraw due to lack of contact, but

the motion was denied and counsel was ordered to file a brief. (6/18/20 Judgment Entry denying withdraw.) {¶17} The following error is now raised for review:

ASSIGNMENT OF ERROR {¶18} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING

APPELLANT'S MOTION FOR INTERVENTION IN LIEU OF CONVICTION. ”

I. {¶19} In Appellant’s sole assignment of error, she argues that the tr ial court erred in denying her motion for intervention in lieu of conviction. W e disagree. {¶20} “Intervention provides an alternative to prison if the trial co urt has reason to believe that drug or alcohol usage by the offender was a factor leading to the offender's criminal behavior. Intervention reflects the legislature's dete rmination that when drug abuse is the cause or precipitating factor in the commission of an offense, it may be more beneficial to the individual and to the community as a whole to treat the cause rather than punish the crime. State v. Shoaf (2000), 140 Ohio App.3d 75, 77, 746 N.E.2d 674. If an offender satisfies all of the statutory eligibility requirement s for intervention, the trial court has discretion to determine whether a particular offender is a good candidate forLicking County, Case No. 2020 CA 002 6

intervention. State v. Wiley, Franklin App. No. 03AP–362, 2003-Ohio-6835, 2003 WL 22966833, at ¶ 3. {¶21} When an offender requests intervention, a trial court may elect to reject it outright without a hearing. R.C. §2951.041(A)(1). If the trial court elects to consider an offender's motion for intervention, it must conduct a hearing t o determine the offender's eligibility and order an assessment of the offender to aid in d oing so. R.C. §2951.041(A)(1). State v. Stanovich at ¶ 10. {¶22} Pursuant to R.C. §2951.041(B), in determining whether an offend er is eligible for intervention, the trial court must find all of the following: (1) The offender previously has not been convicted of or pleade d guilty to any felony offense of violence. (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 su bstantially similar to that division, and is not an offense for which a sen tencing court is required to impose a mandatory prison term. (3) The offender is not charged with a violation of section 292 5.02, 2925.04, or 2925.06 of the Revised Code, is not charged with a violation of section 2925.03 of the Revised Code that is a felony of the fir st, second, third, or fourth degree, and is not charged with a violation of section 2925.11 of the Revised Code that is a felony of the first or second deg ree.Licking County, Case No. 2020 CA 002 7

(4) If an offender alleges that drug or alcohol usage by the of fender was a factor leading to the criminal offense with which the off ender is charged, the court has ordered that the offender be assessed by a community addiction services provider or a properly credentiale d professional for the purpose of determining the offender's prog ram eligibility for intervention in lieu of conviction and recommending an appr opriate intervention plan, the offender has been assessed by a communit y addiction services provider of that nature or a properly credentialed pro fessional in accordance with the court's order, and the community addiction services provider or properly credentialed professional has filed the wr itten

assessment of the offender with the court. (5) If an offender alleges that, at the time of committing the criminal offense with which the offender is charged, the offender had a mental illness, was a person with an intellectual disability, or was a victim of a

violation of section 2905.32 or 2907.21 of the Revised Code and that the mental illness, status as a person with an intellectual disabil ity, or fact that

the offender was a victim of a violation of section 2905.32 or 2907.21 of the Revised Code was a factor leading to that offense, the offender has been assessed by a psychiatrist, psychologist, independent social wo rker, licensed professional clinical counselor, or independent marria ge and family therapist for the purpose of determining the offender's program eligibility for intervention in lieu of conviction and recommending an appropri ate intervention plan.Licking County, Case No. 2020 CA 002 8

(6) The offender's drug usage, alcohol usage, mental illness, o r intellectual disability, or the fact that the offe nder was a vi ctim of a violation of section 2905.32 or 2907.21 of the Revised Code, whichever is applicable, was a factor leading to the criminal offense with which the off ender is charged, intervention in lieu of conviction would not demean th e seriousness of the offense, and i ntervention would substantiall y reduce the likelihood of any future criminal activity. (7) The alleged victim of the offense was not sixty-five years of age or older, permanently and totally disabled, under thirteen year s of age, or a peace officer engaged in the officer's official duties at the t ime of the alleged

offense. (8) If the offender is charged with a violation of section 2925 .24 of the Revised Code, the alleged violation did not result in physi cal harm to

any person. (9) The offender is willing to comply with all terms and condit ions imposed by the court pursuant to division (D) of this section. (10) The offender is not charged with an offense that would res ult in the offender being disqualified under Chapter 4506. of the Revi sed Code from operating a commercial motor vehicle or would subject the offender to any other sanction under that chapter. {¶23} See R.C. §2951.041(B)(1) through (10). {¶24} A trial court has discretion to determine whether the particula r defendant is a good candidate for intervention in lieu of conviction. See State v. Schmidt, 149 OhioLicking County, Case No. 2020 CA 002 9

App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113. However, “ ‘even whe n a defendant satisfies all of the statutory requirements, a trial court has discretion to determine whether the particular defendant is a good candidate for [intervention] .’ ” State v. Leisten, 166 Ohio App.3d 805, 2006-Ohio-2362, 853 N.E.2d 673, ¶ 7, quoting State v. Schmidt at ¶9; see also R.C. §2951.041(C) (“If the court finds that the offender i s not eligible or does not grant the offender's request , the criminal proceedings against the offender shall proceed as if the offender's request for intervention * * * had not bee n made”. {¶25} An abuse of discretion involves more than an error of judgment; it connotes an attitude on the part of the court that is unreasonable, arbi trary, or unconscionable.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, 1141. {¶26} Upon review of the case sub judice , we find that the trial court did not abuse its discretion in denying Appellant's Motion for Intervention i n Lieu of Conviction. As is stated above, in order to grant intervention, the trial court m ust find that “intervention would substantially reduce the likelihood of any future crimina l activity.” See R.C. §2951.041(B)(6). The trial court, in denying Appellant's reques t, noted that Appellant had a lengthy criminal history going back to 1997, including a felo ny in 2006, and had multiple opportunities on probation. She had been through substance abu se treatment programs while on probation in the past. Further, she failed to report o n bond and ap pear mor e than once during the pendency of the instant case and also tested po sitive for drugs. (T. at 17- 18). {¶27} Based on the foregoing we cannot find that the trial court’s de cision was arbitrary, unconscionable or unreasonable.Licking County, Case No. 2020 CA 002 10

{¶28} Appellant’s sole assignment of error is overruled. {¶29} For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed

.

By: Wise, John, P. J. Delaney, J., and Wise, Earle, J., concur.

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