[Cite as State v. Branch , 2013-Ohio-2350.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 25261

v. : T.C. NO. 12CR174 DANIELLE N. BRANCH : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 7th day of June , 2013.

. . . . . . . . . . MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee SUSAN F. SOUTHER, Atty. Reg. No. 0058529, A ssistant Public Defender, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} After the trial court denied her motion for intervention in lieu of2 conviction (ILC), Danielle N. Branch pled no contest to grand theft in the amount of $7,500 or more, but less than $150,000, a fourth-degree fel ony. The trial court sentenced Branch to community control for up to five years. Branch appeals from the trial court’s judgment, claiming that the court erred in denying her motion for ILC. For the following reasons, the trial court’s judgment will be affirmed. {¶ 2} According to the ILC eligibility report, Branch’s mother was the full-time housekeeper for Sam and Tamera Caras. In November and December 2011, Branch, then 22 years old, was also employed by the Cara ses to provide extra help over the holiday season. During that time, five items of jewe lry were found to be missing from the home. The Carases told their full-time housekeeper about the thefts, and the housekeeper confronted her daughter, Branch, who admitted to taking the jewelry. Branch later admitted to the police that she stole three rings from Mrs. Caras, but she denied taking the other two pieces of jewelry. Branch and her boyfriend so ld two of the rings at a pawn shop. Branch admitted that they bought heroin with the money that they received. {¶ 3} According to the Carases, the total value of all of the missing jewelry was $23,853. The value of the jewelry that Branch admitted to taking was $14,425. {¶ 4} In March 2012, Branch was indicted on grand theft of mis cellaneous jewelry having a value of $7,500 or more, but less than $150,000, in violation of R.C. 2913.02(A)(1). On April 19, 2012, Branch filed a mo tion for ILC, stating that her drug use was a factor in the commission of the offense. Although we find no entry in the record referring the matter for an assessment of Branch’s eligibility for ILC, the ILC eligibility report reflects that the case was referred fo r an assessment on April 19, 2012, and the report3 was completed on May 15 or 16. The assessment concluded th at Branch was statutorily eligible for ILC. {¶ 5} On May 17, 2012, Branch came before the court with different counsel (both were from the same law office). Counsel as ked the court for a one-week continuance, stating that she (counsel) had “just met her [Bra nch] today” and that counsel had not talked with Branch about the ILC report. Without a ddressing the request for a continuance, the court orally denied the motion for ILC, finding that ILC would demean the seriousness of the offense. The court provided three reasons for its ruling: (1) the amount of the offense was “allegedly $28,853 [sic],” (2) the offense allegedly involved “essentially a violation of trust,” as the defendant was “permitted to be in the victim’s house to clean house and exploiting that trust and stealing these items,” and (3) the impact of the offense on the victim. The court set a status conference for the following week. {¶ 6} On May 24, 2012, the court held a hearin g at which Branch and several other individuals entered pleas in their respective cases. The trial court stated that, unlike some of the other individuals there, who would be granted ILC, Branch would be entering a no contest plea to grand theft, with an agreement that she would be sentenced to community control. The court noted that it had “previous ly denied Branch’s motion for ILC for reasons the court placed into the record last time she was in court.” {¶ 7} Prior to taking Branch’s plea, defe nse counsel and the trial court had the following exchange: [DEFENSE COUNSEL]: * * * I just want to, for the record, you are denying her hearing on her motion for inte rvention in lieu of conviction.[Cite as State v. Branch , 2013-Ohio-2350.] THE COURT: Right. And you menti oned that in chambers and the ILC statute under House Bill 86 specifically ex plicitly states that the court may deny an ILC without a hearing so I know you’re requesting a hearing but the court denies that request. [DEFENSE COUNSEL]: Correct. The trial court then accepted and found Branch guilty on her no contest plea, but it did not sentence her, because the parties disagreed on the amount of restitution. The court scheduled a restitution hearing for June 14. On June 14, 2012, the parties stated that they had reached an agreement that Branch would pay restitution of $14,475. 1 {¶ 8} The trial court sentenced Branch to community control sanctions, which included intensive supervision, restitution of $14,475, a drug or al cohol assessment and successful completion of any recommended trea tment, attending the pr obation department’s theft clinic, and completion of the drug court program. {¶ 9} In her sole assignment of error, Branch claims that “[t]he trial court abused its discretion when it denied appellant’s motion for interven tion in lieu of conviction.”

1 The record does not explain the discrepancy between the value of the three rings that Branch admitted to stealing, as relayed in the ILC eligibility report ($14,425), and the agreed amount of restitution ($14,475). {¶ 10} 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, mental illness, or being a person with an intellectual disability was a factor leading to the criminal behavior. See R.C. 2951.041(A); See State v. Massien , 1255 Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, ¶ 9. “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 indi vidual 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) (referring to a previous, but similar, version of R.C. 2951.041). ILC is not designed to be punishment, but rather an oppor tunity for certain offenders to receive help for their depe ndence without the ramifications of a felony conviction. Id. {¶ 11} The trial court may reject an offende r’s request for ILC without a hearing. R.C. 2951.041(A)(1). However, if the court el ects to consider an offender’s request, the court must conduct a hearing to determine whether the offender is statutorily eligible for ILC and must stay all criminal proceedings pending the outcome of the hearing. Id. If the court schedules a hearing, the court must order an assessment of the offender for the purpose of determining the offender’s eligibility for ILC and recommending an appropriate intervention plan. Id

. {¶ 12} We find the language of R.C. 2951.041(A)(1 ) to be inartful, as a trial court, by definition, “considers” an offe nder’s request for ILC by making any ruling. But under R.C. 2951.041(A)(1), the court must hold a hear ing and order an assessment when it elects6 to “consider” an offender’s request for ILC. On e reading is that a court can reject an ILC motion out of hand without even “considering” st atutory eligibility or di scretionary factors. However, we have held th at a blanket policy to deny ILC motions is error. E.g ., State v. Nealeigh , 2d Dist. Champaign No. 2010CA28, 2011-Ohio-1416, ¶ 28, citing State v. Rice , 180 Ohio App.3d 599, 2009-Ohio-162, 906 N.E.2d 506 (2d Dist.). Another reading is that if a defendant is statutorily eligible (i.e., none of the fact ors in R.C. 2951.041(B) makes the applicant ineligible) and the trial court “considers” the eligible offender’s being granted ILC, the court must order an assessm ent and hold a hearing. The statute also leaves unanswered what is necessary to constitute a hearing; is it a full evidentiary hearing, or the opportunity to be heard, similar to allocution? {¶ 13} The trial court’s decision not to have a hearing to determine a defendant’s eligibility is significant, because such a d ecision does not affect a substantial right; the defendant has no legal right to a hearing. State v. Stanton , 2d Dist. Montgomery No. 25298, 2013-Ohio-1825, ¶ 13, following Rice . We have thus held that the trial court’s denial of ILC without a hearing is not subject to appella te review (although a plea or finding of guilty thereafter is appealable). Id

. {¶ 14} Prior to Branch’s plea, her attorney confirmed with the trial court that it was denying her motion without a hearing, even though the court obtained an ILC eligibility report and then denied Branch’s motion based on an eligibility requirement. However, Branch does not argue that the trial court erred in denying her a hearing when determining her eligibility. Given the particular circumstances and the arguments presented in this case, we need not resolve any ambiguity in R.C. 2951.041(A)(1). Contrast Stanton (no7 assessment was ordered and the court did not hold a hearing, precluding appellate review). {¶ 15} In order for an offender to be statutorily eligible for ILC, the trial court must find that all ten of the criteria set fort h in R.C. 2951.041(B) are met. Of relevance to Branch, R.C. 2951.041(B)(6) provides, as a prer equisite for ILC eligibility, that “[t]he offender’s drug usage, alcohol usage, mental illness, or inte llectual disability, whichever is applicable, 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 lik elihood of any future criminal activity.” (Emphasis added.) “Eligibility determinations are matters of law subject to de novo review.” State v. Baker , 2d Dist. Montgomery No. 24510, 2012-Ohio-729, ¶ 8. {¶ 16} The trial court determined that ILC would demean the seriousness of Branch’s grand theft offense, citing the value of the items stolen, the violation of trust involved in her offense, and the impact that th e offense had on the victims. In reaching its conclusions, the court considered the ILC report, which detailed how Branch had admittedly stolen three items of jewelry valued at over $14,000, that she was accused of stealing two other items of jewelry wort h approximately $9,000, and the impact on the victim and the circumstances of the offense. {¶ 17} Upon review of the record, we disagr ee with the trial c ourt’s determination that ILC would, as a matter of law, demean the seriousness of the offense in Branch’s case. First, the trial court suggested that Branch held a “position of trust” with the Carases and that she betrayed that trust. In the context of sent encing, “position of trust” is a term of art. The Ohio Supreme Court clarif ied that both public and private persons can hold a position of8 trust, but it rejected the contention that a person is “categorically ineligible for ILC based upon a finding that the offender, as a private individual, breached any moral, ethical, or filial duty.” Massien at ¶ 33. The court clarified that a private person holds a position of trust when he or she occupies “a special relations hip of trust and confid ence equivalent to a fiduciary relationship” and that such person is ineligible for ILC when the offense relates to that fiduciary relationship. Id . at ¶ 34. Branch did not hold a position of trust with the Carases, and she is not inelig ible for ILC on that basis. {¶ 18} Nor do we find that the Carases’ respons e to Branch’s offe nse indicated that ILC would demean the seriousness of the offe nse. Mrs. Caras wa s understandably angry and upset about how this crime occurred and th e loss of her jewelry, which she stated was irreplaceable, and the Carases decided to install a security system at their home. However, the Carases’ reaction was not atypical for such an offense, and fortunately there is no indication that the impact on them was unusually serious. {¶ 19} The trial court also emphasized the value of the items stolen. The ILC report indicates that Branch stole five pieces of jewelry from her employer’s home, which were collectively valued over $20,000. The th ree items she admitted to stealing were valued over $14,000. Although we agree that th e monetary value involved in the offense may be relevant to whether an offender should be placed on ILC, we do not believe that the amount in this case necessarily precludes Branch from eligibility. See State v. Drake , 192 Ohio App.3d 216, 2011-Ohio-25, 948 N.E.2d 965 ( 2d Dist.) (nonsuppor t of dependents arrearage of $13,333.51); State v. Sorrell , 187 Ohio App.3d 286, 2010-Ohio-1618, 931 N.E.2d 1135 (2d Dist.) (nonsupport arrearage of $27,748).9 {¶ 20} Even when an offender satisfies all of the statutory eligibility requirements for ILC, the trial court has di scretion to determine whether a particular offender is a good candidate for intervention. Massien at ¶ 11. The decision whet her to grant a motion for ILC lies within the tria l court’s sound discretion, and an a ppellate cour t will not reverse the trial court’s ruling absent an abuse of that discretion. State v. Adkins , 2d Dist. Miami No. 2011 CA 28, 2012-Ohio-4744, ¶ 16. {¶ 21} Although we disagree with the trial c ourt’s legal conclusion that Branch was not eligible for ILC because ILC would demean the seriousness of the offense, we nevertheless find that the trial court did not abuse its discreti on in denying Branch’s motion for ILC. While Branch did not occupy a “position of trust” with the Carases, the trial court reasonably considered that Branch had been allowed into the Cara ses’ home to provide additional help during the holiday season, and that Branch “exploited” their trust by stealing five irreplaceable items of jewelry of substantial value. The ILC report further reflected that Branch’s actions caused her mother to lose her job. {¶ 22} We also note that the ILC report indicated that Branch had new misdemeanor charges in May 2012, resulting in the revocation of her conditional own recognizance bond in this case on May 15, 2012. (A COR bond was again set a few days later.) At the time of the ILC report, Branch was no longer living with her mother, and her residence was unknown. Branch missed a Cris is Care assessment and had not followed through with rescheduling the assessment. {¶ 23} In summary, upon review of the recor d, the trial court did not abuse its10 discretion in denying Branch’s motion for ILC. 2 The assignment of error is overruled. {¶ 24} The trial court’s judgment will be affirmed.

. . . . . . . . . . DONOVAN, J. concurs in judgment only. WELBAUM, J., concurring. {¶ 25} I agree with the judgment of the c ourt but affirm for different reasons. There are potentially three decision points for the trial judge in the ILC law. Remarkably, there is a different level of appellate review for each. I believe the trial court decided the request at the first stage. It appears Judge Froelich affirms based on evaluation of the third stage. {¶ 26} The first decision is whether the tria l court will accept or deny a request for intervention under 2951.041(A)(1) without a hearing. As Judge Froelich noted, if the trial court denies the request at this stage it is not subject to appellate re view absent a showing that the court made the decision based upon a blanket policy that an y and all requests are denied without consideration. State v. Rice , 180 Ohio App.3d 599, 2009-Ohio-162, 906 N.E. 2d 506 (2d Dist.); State v. Nealeigh, 2d Dist. Champaign No. 2010CA28, 2011-Ohio-1416. In Rice , we found that

2 Although not relevant to our analysis, the trial court’s docket reflects that Branch’s community control in this case was revoked on April 19, 2013, and she was sentenced to seven months in prison. * * * abuse of discretion in denying a defendant’s 2951.041 motion without a hearing is harmless error that an appellate court is charged by Crim.R.52(A) to disregard, because th e defendant could have suffered no11 prejudice to a legal right enforced and protected by law as a result. * * * [B]ecause that section creates not a right of relief but instead a privilege that the court possesses “consid erable discretion” to deny, * * * we find that the denial of defendant’s re quest was harmless e rror and therefore not a basis on which to reverse the j udgment of conviction from which the defendant’s appeal was taken.
Rice at ¶ 14-15. {¶ 27} If the trial court actually considers the request at the first stage, a denial will be affirmed. {¶ 28} The second decision point occurs if th e trial court elects to consider the request. After the mandatory hearing and consideration of the assessment the court will determine whether all ten of th e criteria in 2951.041(B) are met. At this stage, the trial court’s eligibility determinations are subject to de novo review on appeal. Here, Judge Froelich disagreed with several of the trial court’s determinations. In my view, the trial court did not err in its findings. If the defenda nt does not meet all ten criteria the trial court shall deny the request. {¶ 29} Thirdly, in the event the defendant satisfies all of the criteria, the court then must decide whether to grant the offender ILC. Appellate review of this decision is by an abuse of discretion standard. C onsequently, even if an offende r is successful in persuading the court that all eligibility requirements have been satisfied, the trial court has the discretion to deny the ILC request. {¶ 30} It appears Judge Froelich affirms because he finds that at the third decision12 point, the trial court did not abuse its discre tion by denying the request even though Judge Froelich found the defendant met all statutory criteria. Howe ver, in my view, the trial court denied the request at the first decision point. Since the trial court did not make its initial decision based on a blanket policy to deny a ll ILC requests, I affirm the trial court.

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Copies mailed to: Michele D. Phipps Susan F. Souther Hon. Dennis J. Langer