Lead Opinion
{¶ 3} On July 10, 2008, the court held a sentencing hearing where it determined that Massien was eligible for ILC. Massien then retracted her initial plea and plead guilty to the charges pursuant to the provisions of the intervention statute. The court sentenced her to one *2 year of rehabilitation based on specific conditions. The State appealed and asserts one assignment of error for our review.
"THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN GRANTING THE REQUEST OF SALLY A. MASSIEN FOR TREATMENT IN LIEU OF CONVICTION PURSUANT TO R.C. §2951.041 SINCE SALLY A[.]MASSIEN HELD A POSITION OF TRUST AND THE OFFENSE RELATED TO THAT POSITION OF TRUST; ACCORDINGLY SHE COULD NOT BE SENTENCED PURSUANT TO R.C. §2929.13 (B)(2)(b)."
{¶ 4} In its sole assignment of error, the State argues that a nurse who is convicted of a drug theft in the course of her employment is statutorily ineligible for treatment in lieu of conviction under R.C.
{¶ 5} This Court applies a de novo standard of review to an appeal from a trial court's interpretation and application of a statute.Red Ferris Chevrolet, Inc. v. Aylsworth, 9th Dist. No. 07CA0072,
{¶ 6} As a matter of first impression for this Court, it is essential to first understand the interplay between the relevant statutes at issue in order to properly analyze the State's alleged error. The intervention statute allows an offender facing criminal charges to request ILC if drug or alcohol usage was a factor leading to the criminal offense. R.C.
"The offender previously has not been convicted of or pleaded guilty to a felony, previously has not been through intervention in lieu of conviction under this section or any similar regimen, and is charged with a felony for which the court, upon conviction, would impose sentence under division (B)(2)(b) of section *4
2929.13 of the Revised Code or with a misdemeanor." (Emphasis added.) R.C.2951.041 (B)(1).
{¶ 7} Under R.C.
{¶ 8} The State argues that the court should have made a finding under R.C.
{¶ 9} The State relies on two Tenth District cases, State v.Wiley, 10th Dist. Nos. 03AP-362 03AP-363,
{¶ 10} In Wiley, the trial court denied the defendant's motion for ILC based on her "two previous failed attempts at treatment"; its belief that ILC would "demean the seriousness of the offense[s]"; and the "trust position [she] held as a nurse in our society." Wiley at ¶ 9. Wiley was *5 employed at a nursing home and admitted to stealing prescription drugs on over 31 occasions. Id. at ¶ 4. Wiley had a 20-year history of drug use, had altered physician prescriptions, and had been declared a drug dependent person based on her psychological evaluation. Id. Without much additional analysis, the Tenth District affirmed the trial court's determination that Wiley occupied a position of trust and consequently denied her motion for ILC.
{¶ 11} When addressing this issue for a second time inFrance, the Tenth District further explained its rationale for finding that nurses hold a "position of trust" in society. In France, the defendant was a registered nurse who was charged with 52 counts of narcotics theft from her employer-hospital. Id. at ¶ 2. France committed those thefts by taking schedule II narcotics in the name of patients who had no outstanding prescriptions ordered and by taking drugs in excess of the amount prescribed to the patient, then utilizing the excess for herself. Id. The trial court had sentenced her to ILC, but the Tenth District reversed, based on its interpretation of the legislative history of the intervention statute and the facts of France's case. Id. at ¶ 11-12. It concluded that France's "professional position facilitated her crime and that the hospital's trust in her was breached." Id. at ¶ 11. The court further acknowledged that "this line of reasoning will inevitably make it difficult for health care professionals at all levels to benefit from intervention in narcotic-related crimes [and] [w]hether or not it is desirable, it is the logical result of the statute as written." The court noted that France "was entrusted with great discretion by her employer-hospital *** and her breach of that trust naturally entails serious consequences for subsequent orderly and lawful operation of the hospital's drug dispensing activities." France at ¶ 12.
{¶ 12} Our research reveals that both the Seventh and Twelfth Districts have similarly held that both public and private individuals can occupy a "position of trust" under *6
R.C.
{¶ 13} Other courts, however, have reached the opposite conclusion, thus limiting the scope of the phrase "position of trust" to generally include "public officials and public servants who abuse their positions of public trust." State v. Condon, 1st Dist. No. C-020262,
{¶ 14} Given the ambiguity abounding from the statute, we must analyze the legislative intent of the General Assembly when enacting the intervention statute, as well as its use of the phrase "position of trust" throughout the Revised Code. *7
"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 that punish the crime. 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 intervention." State v. Geraci, 2nd Dist. No. 04AP-26,
, at ¶ 2004-Ohio-6128 5 .
{¶ 15} With that goal in mind, we now turn to the intended meaning behind the phrase "position of trust."
{¶ 16} The First District remarked that "an overall reading of R.C.
{¶ 17} Were we to adopt the State's reasoning that nurses who steal drugs from their employer are categorically barred from being eligible for ILC, we would defeat both the intent of the intervention statute and goals underlying the use of the phrase "position of trust." That application is simply too broad and is not one this Court is willing to make. Therefore, we subscribe to the more reasoned approach espoused by the First District which recognizes that the *8 phrase was meant to apply predominantly to the offender's public standing, but does not foreclose the possibility that in limited circumstances, a private individual in a private setting may be found to have occupied a "position of trust."
{¶ 18} Massien also directs us to the provisions governing disciplinary actions that the board of nursing may take against one of its members. There, the statute specifically states that "sanctions may be imposed for *** a judicial finding of eligibility for intervention in lieu of conviction for[] violating any municipal, state, county, or federal drug law[.]" R.C.
{¶ 19} Furthermore, it is illogical to think that the General Assembly intended that nurses be categorically ineligible for ILC because they hold a "position of trust" at their place of employment, yet simultaneously incorporate a provision that references their participation in ILC into the statute governing their licensure. Additionally, we note that the Revised Code is replete with references that contemplate licensed medical professionals receiving ILC, further supporting our belief that the legislature intended for such professionals, who commit criminal offenses against their employers, to, if appropriate, receive treatment, not punishment. See, e.g., R.C.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30. *10 Costs taxed to Appellant.
DICKINSON, P. J., CONCURS.
Dissenting Opinion
{¶ 21} I respectfully dissent from the majority's holding that Massien is eligible for intervention in lieu of conviction ("ILC") pursuant to R.C.
{¶ 22} Massien could only be eligible for ILC if she has no prior felony convictions, has never before participated in ILC, "and is charged with a felony for which the court, upon conviction, would impose sentence under division (B)(2)(b) of section
{¶ 23} The majority considers the body of law discussing whether a private individual can hold a position of trust and concludes that the legislature intended that R.C.
{¶ 24} First, the plain language of the statute does not expressly limit the applicability of subsection (B)(1)(d) to public officials, while carving out an exception for private individuals under limited circumstances. Rather, on its face, the statute is applicable either to offenders who held a public office and public position of trust, or to offenders who held a public office or any position of trust, whether public or private. But there is nothing in the language of R.C.
{¶ 25} Second, I disagree with the majority's reasoning that the legislature intended for offenders like Massien, i.e., nurses who steal drugs from their health care employer, to be eligible for ILC merely because R.C.
{¶ 26} Furthermore, the majority inferably concludes that "medical professionals who have ready access to drugs at their place of employment, who ultimately take and use those drugs, but who would benefit more from treatment for their offense, than being subject to criminal punishment for it[,]" can only get beneficial treatment under an ILC, and without the stigma of criminal culpability. I disagree. R.C.
{¶ 27} I believe that, as a matter of law, one who has access to drugs at work, or has responsibility for disseminating drugs to others, occupies a position of trust. Furthermore, theft of those drugs by such a person constitutes an offense directly related to that position. Due to the overriding public interest in preserving such a position of trust, I believe that the legislature intended that offenders like Massien be excluded from eligibility for ILC pursuant to R.C.
{¶ 28} I believe that public policy considerations further support ineligibility for offenders like Massien to participate in ILC. The offender's conviction serves the interest in public safety by providing notice of the offender's conduct. Completion of ILC may result in permanent or merely temporary success. In either case, however, there is no public record of the offender's criminal activity. I am concerned that an offender who later engages in similar conduct, especially in another venue, could again receive only ILC in the absence of any record that she is no longer eligible pursuant to R.C.
{¶ 29} For the reasons above, I believe that the trial court erred by finding Massien eligible for ILC. Massien held a position of trust and her offense related to that position. Therefore, R.C.