State v. Drake
948 N.E.2d 965
Ohio Ct. App.2011Background
- Drake was indicted on three counts of felony nonsupport of dependents and pleaded not guilty.
- The trial court denied Drake’s motion for intervention in lieu of conviction (ILC) as statutorily ineligible.
- Drake pled no contest after the ILC denial and was found guilty on all three counts.
- He was sentenced to community control not to exceed five years and required to pay $13,333.51 in arrearages.
- Drake appeals claiming the ILC denial was improper because the victim was under 13, which he argues is not the statutory victim for ILC eligibility.
- The court discusses whether the 'victim' for ILC purposes in nonsupport cases is the child or the custodial payee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly denied ILC based on victim age. | Drake—victim is the payee, not the child; thus under 13 does not apply. | State—Sorrell dictates victim is the custodial payee; ILC eligibility denied. | Yes, the trial court erred; victim for ILC is the custodian, not the child; remand. |
| Whether the ILC denial is moot after sentencing. | Drake's challenge to ILC remains live. | N/A or moot after disposition. | Moot; second assignment dismissed as moot due to disposition. |
Key Cases Cited
- State v. Sorrell, 187 Ohio App.3d 286 (Ohio App. Dist. 2010) (victim for ILC nondisagreement is custodial payee, not child)
- State v. Pence, 2010-Ohio-5901 (Ohio App. 2010) (reaffirmed Sorrell on ILC victim interpretation)
- Connin v. Bailey, 15 Ohio St.3d 34 (Ohio 1984) (presumes custodial provision supports child; payer liable for arrearages)