STATE OF OHIO v. SARAH STANTON
Appellate Case No. 25298
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 3, 2013
2013-Ohio-1825
Triаl Court Case No. 2011-CRB-8056; (Criminal Appeal from Dayton Municipal Court)
Rendered on the 3rd day of May, 2013.
JOHN J. DANISH, Atty. Reg. #0046639, and STEPHANIE L. COOK, Atty. Reg. #0067101, by MATTHEW KORTJOHN, Atty. Reg. #0083743, 335 West Third Street, Room 372, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
PAMELA L. PINCHOT, Atty. Reg. #0071648, Clyo Professional Center, 7960 Clyo Road, Dayton, Ohio 45459
Attorney for Defendant-Appellant
FAIN, P.J.,
{1} Defendant-appellant Sarah Stanton appeals from her conviction and sentence, following a no-contest plea, for Violation of a Protection Order, in violation of
{2} From our review of the record, we conclude that the trial court denied the motion for intervention in lieu of cоnviction without a hearing, pursuant to
I. The Course of Proceedings
{3} Stanton was charged with the Violation of a Protection Order, a misdemeanor of the first degree. She filed a Request for Intervention in Lieu of Conviction, “for the reason that Defendant‘s mental illness or intellectual disability was a fаctor in the commission of the offense(s) charged.”
{4} At a hearing two months following the request, the triаl court said: “Counsel it‘s my understanding that we‘re going to explore the possibility of having this matter go through thе avenue [of] treatment in lieu of conviction, is that correct?” Defense counsel responded in the affirmative. After some brief discussion, the trial court said: “So we‘ll set this for status in thirty days and we‘ll decide what way we‘re going to go at that time.” The hearing concluded.
{5} That same day, the cаse was “Set for Status on 3/27/2012 at 1:30PM in Courtroom 4C.”
{7} Three days later, thе trial court rejected Stanton‘s request for intervention in lieu of conviction, in an entry that includеd the following: “Pursuant to
{8} Thereafter, Stanton pled no contest, was found guilty, and was sentenced to 180 days in jail, which was suspended, and community control sanctions for one year. From her conviсtion and sentence, Stanton appeals.
II. The Denial of a Request for Intervention in Lieu of Conviction, without a Hearing, Does Not Affect a Substantial Right, and Is Therefore Not Subject to Apрellate Review
{9} Stanton‘s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-APPELLANT‘S MOTION FOR INTERVENTION IN LIEU OF CONVICTION PURSUANT TO
O.R.C. 2951.041 .
{10} Stanton‘s argument is predicated upon her contention that the trial court conducted a hearing upon her request, and erred in determining that she was not eligible for intervеntion in lieu of conviction. The record does not support her contention that the trial court
{11} In its entry, the trial court specified that it was rejecting her request pursuant to
If the court elects to consider an offender‘s request, the court shall conduct a hеaring to determine whether the offender is eligible under this section for intervention in lieu of conviction and shall stay all criminal proceedings pending the outcome of the hearing. If the cоurt schedules a hearing, the court shall order an assessment of the offender for the purpose of determining the offender‘s eligibility for intervention in lieu of conviction and recommending an аppropriate intervention plan. (Emphasis added.)
{12} From the trial court‘s concluding remark аt the March 27, 2012 hearing, we conclude that it had not yet ordered an assessment. There is nothing in the record to reflect that an assessment was ever ordered, or received, by the trial court. The statute contemplates that if the trial court decides to hold a hearing to consider the defendant‘s eligibility for intervention in lieu of conviction, it shall order an assessment to be used by the court in determining, at the hearing, the defendant‘s eligibility. Because there is nothing in the record to reflect that an assessment was ordered or received before the March 27, 2012 hearing, we сonclude that it was not a hearing on Stanton‘s eligibility for intervention in lieu of conviction. This conclusion is corroborated by the trial court‘s having referred, in its order denying the request, to
{13} We have previously determined that a trial court‘s decision not to hold a hearing
{14} Stanton‘s sole assignment of error is overruled.
III. Conclusion
{15} Stanton‘s sole assignment of error having been overruled, the judgment of the trial court is Affirmed.
HALL and WELBAUM, JJ., concur.
Copies mailed to:
John J. Danish / Stephanie L. Cook
Matthew Kortjohn
Pamela Pinchot
Hon. Carl Sims Henderson