STATE OF OHIO, Plaintiff-Appellee, - vs - CHELSEA KUHN, Defendant-Appellant.
CASE NO. CA2018-01-003
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
10/8/2018
[Cite as State v. Kuhn, 2018-Ohio-4065.]
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 16CR31682
Kidd & Urling, LLC, Thomas W. Kidd, Jr., 8913 Cincinnati-Dayton Road, West Chester, OH 45069, for defendant-appellant
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Chelsea Kuhn, appeals from the decision of the Warren County Court of Common Pleas revoking her intervention in lieu of conviction (“ILC“) after she was found guilty of violating the terms and conditions of her ILC treatment plan. For the reasons outlined below, we affirm.
{¶ 2} On March 14, 2016, the Warren County Grand Jury returned a three-count indictment charging Kuhn with single counts of trespass in a habitation, resisting arrest, and obstructing official business. The charges arose after Kuhn trespassed into the home of her ex-boyfriend‘s mother, thus prompting a call to the police. After the police arrived at the scene, Kuhn, who was intoxicated, wrestled with police as the responding officers attempted to place her under arrest. The record indicates Kuhn struggles with substance abuse and mental health issues, including severe and debilitating anxiety, depression, and manic episodes, which were a significant factor leading to the commission of the above-named offenses.
{¶ 3} On May 2, 2016, Kuhn filed a motion with the trial court requesting she be granted ILC in accordance with
{¶ 4} On June 21, 2016, the trial court held a hearing on Kuhn‘s motion for ILC. At this hearing, the trial court determined Kuhn was eligible for ILC and thereafter granted Kuhn‘s request that she be placed on ILC. In accordance with
{¶ 5} Over a year later, on October 30, 2017, Kuhn‘s probation officer filed a report with the trial court alleging Kuhn had violated the terms and conditions of her ILC treatment plan by failing to report as instructed. Kuhn‘s probation officer further alleged that “after attempts to contact [Kuhn] were unsuccessful a warrant was issued for her arrest.” After receiving this report, the trial court scheduled the matter for a hearing on November 1, 2017. Kuhn appeared at this hearing and entered a plea of not guilty to violating the terms and conditions of her ILC treatment plan. Kuhn was then appointed an attorney and a final hearing on the matter was scheduled for November 9, 2017.
{¶ 6} On November 6, 2017, three days before the final hearing was scheduled to begin, Kuhn filed a motion requesting a continuance so that she could submit to a mental health evaluation. Three days later, Kuhn appeared before the trial court for the previously scheduled November 9, 2017 final hearing. As part of this hearing, the trial court noted that Kuhn needed a mental health evaluation so that she could be properly diagnosed and treated for her mental health issues. The trial court then granted Kuhn‘s motion for a continuance and rescheduled the matter for final hearing on December 29, 2017.
{¶ 7} On December 11, 2017, Kuhn filed a notice with the trial court alleging she “may have been insane” in the weeks leading up to when she failed to report to her probation officer as alleged. In support, Kuhn argued there was no evidence that she knew that she had been instructed to report to her probation officer as required by the terms and conditions of her ILC treatment plan. Kuhn also argued that she “did not choose to abscond” due to her mental health issues at that time, which, according to affidavits submitted by Kuhn‘s parents, included severe and debilitating anxiety and depression.
{¶ 8} On December 29, 2017, Kuhn appeared at the final hearing before the trial court and stipulated to the fact that she did not report to her probation officer as alleged and
{¶ 9} The trial court was not persuaded by Kuhn‘s arguments and found her guilty of violating the terms and conditions of her ILC treatment plan as alleged by her probation officer. In so holding, the trial court stated:
It‘s my job to apply the law as I see it. The law is, at least as we sit here today, Ms. Kuhn, that if you violate the terms of the treatment plan, then I have to revoke your intervention in lieu of conviction, so based upon that and that reason alone, I am going to revoke your intervention in lieu of conviction.
After finding Kuhn guilty of violating the terms and conditions of her ILC treatment plan, the trial court reinstated her prior guilty plea and sentenced Kuhn to a three-year community control term. Kuhn now appeals from the trial court‘s decision revoking her ILC, raising three assignments of error for review.
Intervention in Lieu of Conviction and R.C. 2951.041
{¶ 10} Before addressing Kuhn‘s three assignments of error, we note that it is
Assignment of Error No. 1:
{¶ 13} TRIAL COURT ERRED BY REVOKING KUHN‘S INTERVENTION IN LIEU OF CONVICTION STATUS WHEN THE EVIDENCE ADDUCED AT THE HEARING FAILED TO ESTABLISH THAT SHE DELIBERATELY VIOLATED THE TERMS OF HER TREATMENT PLAN.
{¶ 14} In her first assignment of error, Kuhn argues the trial court erred by revoking her ILC when there was no evidence she deliberately and/or willfully violated the terms and conditions of her ILC treatment plan. However, as this court has stated previously, there is no authority to support Kuhn‘s claim that “she could only be found guilty of violating the terms and conditions of her ILC upon the state demonstrating she did so purposefully.” State v. Schwab, 12th Dist. Warren No. CA2017-03-037, 2017-Ohio-7812, ¶ 13. Given the statutory definition of “purposely” as provided in
{¶ 15} In so holding, although addressing probation and community control violations, we note that several courts throughout this state have found no authority that mandated the state introduce evidence an offender willfully violated the terms of his or her probation or community control. See State v. Stockdale, 11th Dist. Lake No. 96-L-172, 1997 Ohio App. LEXIS 4363, *5 (Sept. 26, 1997) (no authority that mandates the state must introduce evidence showing probation violation was willful); State v. Miller, 6th Dist. Fulton No. F-05-016, 2006-Ohio-4810, ¶ 15 (no requirement that the state prove willfulness before the trial court can revoke an offender‘s community control); State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, ¶ 12 (state need not find an offender violated the terms of her community control willfully before the trial court could revoke the offender‘s community control); but see State v. Grant, 1st Dist. Hamilton Nos. C-150608 and C-150609, 2016-Ohio-7857, ¶ 18 (in order for a court to revoke an offender‘s community control for nonpayment of financial obligations, such as court costs, fees, and restitution, and sentence the offender to a term of imprisonment, the offender‘s failure must have been willful and not the result of indigence).
{¶ 16} These cases, however, although informative, “are inapplicable to the revocation of [ILC], which is a voluntary statutory rehabilitation program designed to give an offender the opportunity to address issues that contributed to the commission of the offense and to avoid a criminal conviction as long as the offender successfully completes the intervention plan and complies with its terms and conditions.” State v. Allen, 10th Dist. Franklin No. 17AP-341, 2018-Ohio-305, ¶ 15. The fact remains that there is no authority to
{¶ 17} Assignment of Error No. 2:
{¶ 18} TRIAL COURT ERRED TO DETRIMENT OF MS. KUHN IN BELIEVING IT HAD NO DISCRETION TO CONTINUE HER ON INTERVENTION IN LIEU OF CONVICTION AFTER FINDING THAT SHE FAILED TO COMPLY WITH THE TREATMENT PLAN.
{¶ 19} In her second assignment of error, Kuhn argues the trial court erred by finding it was required to revoke her ILC upon finding her guilty of violating the terms and conditions of her ILC treatment plan rather than merely continuing her on ILC. We again disagree.
{¶ 20} As this court stated in State v. Davis, 12th Dist. Warren Nos. CA2013-12-129 and CA2013-12-130, 2014-Ohio-2122, it is well-established that the now former
{¶ 21} Kuhn nevertheless argues the trial court should have continued her on her ILC treatment plan due to the General Assembly passage of Am.Sub.S.B. No. 33, 2017 Ohio Laws File 40 on December 22, 2017. Pursuant to that bill, the General Assembly planned to amend
{¶ 22} That statute, however, although passed by the General Assembly on December 22, 2017, had an effective date of March 23, 2018. This was well after the trial court found Kuhn guilty of violating the terms and conditions of her ILC treatment plan. Although Kuhn suggests otherwise, it is well-established that a trial court, just as this court on appeal, must comply with the law as written and then in effect. Kuhn would undoubtedly prefer to be subject to the now amended ILC statute. Kuhn, however, did not have any rights vested by the General Assembly‘s passage of Am.Sub.H.B. No. 33 until its effective date of March 23, 2018. “In the absence of constitutional limitations, the legislature is free to determine for itself when an act shall go into effect.” State v. Dere, 4th Dist. Ross No. 96CA2247, 1997 Ohio App. LEXIS 2961, *6 (June 30, 1997). This is true despite the language found in
{¶ 23} The trial court in this case found Kuhn guilty of violating the terms and conditions of her ILC treatment plan by failing to report to her probation officer as instructed. Upon finding Kuhn guilty, the trial court then sentenced Kuhn to an appropriate sanction under
{¶ 24} Assignment of Error No. 3:
{¶ 25} MS. KUHN WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶ 26} In her third assignment of error, Kuhn argues she received ineffective assistance of counsel when her trial counsel failed to move for a continuance until after the amendment to
{¶ 27} Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Hendrix, 12th Dist. Butler No. CA2012-05-109, 2012-Ohio-5610, ¶ 14. As a result, to prevail on an ineffective assistance of counsel claim, Kuhn must demonstrate (1) her trial
{¶ 28} As it relates to the first prong regarding her trial counsel‘s performance, Kuhn must show her trial counsel made errors so serious that he was not functioning as the “counsel” guaranteed a defendant by the Sixth Amendment to the United States Constitution. State v. Miller, 12th Dist. Clermont No. CA2011-04-028, 2012-Ohio-995, ¶ 27. On the other hand, as it relates to the second prong requiring a showing of prejudice, Kuhn must show that, but for her trial counsel‘s errors, there is a reasonable probability that the result of trial would have been different. State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 42. A “reasonable probability” is a probability that is sufficient to undermine confidence in the outcome. State v. Graves, 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 31, citing Strickland at 694.
{¶ 29} As noted above, Kuhn argues her trial counsel was ineffective for not moving for a continuance until after the amendment to
{¶ 30} Regardless, even assuming Kuhn‘s trial counsel was unaware of the bill‘s
{¶ 31} Because it would have been well within the trial court‘s discretion to deny Kuhn‘s request for a three-month continuance if her trial counsel had made such a request, Kuhn‘s trial counsel could reasonably have concluded that moving for a continuance would have been a futile act. “An attorney is not ineffective for failing to make futile requests[.]” State v. Harrop, 12th Dist. Fayette No. CA2005-12-036, 2006-Ohio-6080, ¶ 14. Kuhn‘s trial counsel was therefore not ineffective for not moving for a continuance until after the amendment to
{¶ 32} In so holding, we note that even if the trial court had continued the matter until after the amendment to
{¶ 33} Just as there was no guarantee that the trial court would have granted Kuhn‘s
{¶ 34} Based on the facts and circumstances of this case, Kuhn has failed to show that a three-month continuance until after the effective date of the amendment to
Conclusion
{¶ 35} We find no merit to the arguments raised by Kuhn within her three assignments of error. Our decision, however, should in no way discourage Kuhn from continuing her efforts to overcome her substance abuse and mental health issues. Unfortunately, due to a recent increase in substance abuse within this court‘s jurisdiction, this court is all too familiar with the struggles of addiction and the impact substance abuse may have on one‘s mental health. However, as noted above, the trial court, just as this court on appeal, must comply with the law as written and then in effect. Simply stated, despite the clear support Kuhn‘s family provides, the fact remains that Kuhn violated the terms and conditions of her ILC treatment plan by failing to report to her probation officer
{¶ 36} Judgment affirmed.
RINGLAND and HENDRICKSON, JJ., concur.