State v. Sanders

[Cite as State v. Sanders, 2020-Ohio-5153.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2020 CA 002
KATINA SANDERS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
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 43055
Licking County, Case No. 2020 CA 002 2
Wise, John, P. J.
{¶1} Defendant-Appellant Katina Sanders appeals her conviction and sentence
entered in the Licking County Common Pleas Court following a plea 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 speeding
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 field 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 indicted 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 the fifth degree.
{¶5} On October 30, 2019, Appellant filed a Motion for Order Granting 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 engaged 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. Appellant also indicated that
she had reviewed and signed the admission of guilt form, and had no questions about it.
The trial court reviewed the constitutional rights which Appellant was giving up by
Licking 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 understood. (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 of 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 possible term of
three years and explained that if Appellant violated post-release control, she would be
"subject to being returned to the penitentiary for more incarceration."
{¶9} Appellant indicated that she was currently on community control through
Williams County, and the trial court explained that a guilty finding 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 plea 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 presentence
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 majority of her prior offenses
were misdemeanors which did not involve drugs of abuse. Nonetheless, counsel
acknowledged that Appellant had some issues with appearing for court, and that she had
Licking County, Case No. 2020 CA 002 4
tested positive for drugs while on pretrial supervision. Counsel also noted that Appellant
had a number of legitimate medical conditions which required medication. Counsel
notified the court that Appellant's community control in Williams 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 sentences she would have
received for her OVIs. (T. at 21-22). The trial court also found that Appellant’s previous
problems with reporting for probation and her positive drug tests also made her a poor
candidate. (T. at 22).
{¶14} The trial court then proceeded to sentence Appellant to one year of
community control with residential treatment for drug and alcohol 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 program. In response to a
question from the prosecutor, the court noted that the Star Justice 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 asking for new
counsel and a bond pending her next hearing. The trial court interpreted 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 difficulty locating
Appellant, but eventually made contact at the Star Justice Center. 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 challenge
Licking 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, counsel 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 discharge 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 trial court erred
in denying her motion for intervention in lieu of conviction. We disagree.
{¶20} “Intervention provides an alternative to prison if the trial court 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 determination 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 requirements for intervention, the trial court
has discretion to determine whether a particular offender is a good candidate for
Licking 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 to determine the offender's
eligibility and order an assessment of the offender to aid in doing so. R.C.
§2951.041(A)(1). State v. Stanovich at ¶ 10.
{¶22} Pursuant to R.C. §2951.041(B), in determining whether an offender is
eligible for intervention, the trial court must find all of the following:
(1) The offender previously has not been convicted of or pleaded
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 substantially
similar to that division, and is not an offense for which a sentencing court is
required to impose a mandatory prison term.
(3) The offender is not charged with a violation of section 2925.02,
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 first, 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 degree.
Licking County, Case No. 2020 CA 002 7
(4) If an offender alleges that drug or alcohol usage by the offender
was a factor leading to the criminal offense with which the offender is
charged, the court has ordered that the offender be assessed by a
community addiction services provider or a properly credentialed
professional for the purpose of determining the offender's program eligibility
for intervention in lieu of conviction and recommending an appropriate
intervention plan, the offender has been assessed by a community addiction
services provider of that nature or a properly credentialed professional in
accordance with the court's order, and the community addiction services
provider or properly credentialed professional has filed the written
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 disability, 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 worker,
licensed professional clinical counselor, or independent marriage and family
therapist for the purpose of determining the offender's program eligibility for
intervention in lieu of conviction and recommending an appropriate
intervention plan.
Licking County, Case No. 2020 CA 002 8
(6) The offender's drug usage, alcohol usage, mental illness, or
intellectual disability, or the fact that the offender was a victim 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 offender is
charged, intervention in lieu of conviction would not demean the
seriousness of the offense, and intervention would substantially 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 years of age, or a
peace officer engaged in the officer's official duties at the time 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 physical harm to
any person.
(9) The offender is willing to comply with all terms and conditions
imposed by the court pursuant to division (D) of this section.
(10) The offender is not charged with an offense that would result in
the offender being disqualified under Chapter 4506. of the Revised 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 particular defendant is
a good candidate for intervention in lieu of conviction. See State v. Schmidt, 149 Ohio
Licking County, Case No. 2020 CA 002 9
App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113. However, “ ‘even when 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 is 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 been 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, arbitrary, 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 in Lieu of Conviction. As is
stated above, in order to grant intervention, the trial court must find that “intervention
would substantially reduce the likelihood of any future criminal activity.” See R.C.
§2951.041(B)(6). The trial court, in denying Appellant's request, noted that Appellant had
a lengthy criminal history going back to 1997, including a felony in 2006, and had multiple
opportunities on probation. She had been through substance abuse treatment programs
while on probation in the past. Further, she failed to report on bond and appear more than
once during the pendency of the instant case and also tested positive for drugs. (T. at 17-
18).
{¶27} Based on the foregoing we cannot find that the trial court’s decision 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.
JWW/kw