[Cite as State v. Baker, 2012-Ohio-729.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24510
vs. : T.C. CASE NO. 10CR1516
STEFFEN J. BAKER : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 24th day of February, 2012.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Melissa M. Replogle, Atty.
Reg. No. 0084215, Asst. Pros. Attorney, P.O. Box 972, Dayton, OH
45422
Attorneys for Plaintiff-Appellee
P.J. Conboy, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber
Heights, OH 45424
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Steffen Baker, appeals from his conviction and sentence for
carrying concealed weapons.
{¶ 2} In the early morning hours of May 2, 2010, Defendant went with his nephew
and a friend to the Juicy Night Club on Shoup Mill Road in Harrison Township. When
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Defendant urinated in the parking lot, he was confronted by two security officers from the
club who told him to leave the premises. Defendant became argumentative and aggressive
toward the security officers, who then took Defendant into custody. While the security
officers were attempting to physically control Defendant, he kept reaching toward his left
front pants pocket. After handcuffing Defendant, the security officers patted Defendant down
for weapons and discovered a loaded handgun and a baggie of marijuana in Defendant’s left
front pants pocket, the same pocket Defendant had been reaching for.
{¶ 3} Defendant was indicted on one count of carrying concealed weapons, R.C.
2923.12(A)(2), a felony of the fourth degree. Defendant filed a motion requesting
intervention in lieu of conviction (ILC) pursuant to R.C. 2951.041. The State opposed
Defendant’s request for ILC. On January 27, 2011, the trial court conducted a hearing,
following which the court denied Defendant’s request for ILC. The court concluded that
Defendant does not meet all of the eligibility requirements for ILC because drugs or alcohol
were not factors leading to Defendant’s criminal conduct, and ILC would demean the
seriousness of his offense. Defendant subsequently entered a no contest plea to the carrying
concealed weapons charge and was found guilty. He was sentenced to five years of
community control sanctions.
{¶ 4} Defendant timely appealed to this court from his conviction and sentence. He
challenges only the trial court’s decision denying his request for ILC.
ASSIGNMENT OF ERROR
{¶ 5} “THE TRIAL COURT VIOLATED APPELLANT’S DUE PROCESS
RIGHTS BY DENYING HIS MOTION FOR INTERVENTION IN LIEU OF
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CONVICTION.”
{¶ 6} Defendant argues that the trial court erred by concluding that he was ineligible
for ILC because, contrary to the trial court’s findings, Defendant meets all of the statutory
eligibility requirements for ILC in R.C. 2951.041(B).
{¶ 7} R.C. 2951.041(A)(1) provides, in relevant part:
If an offender is charged with a criminal offense, including but not
limited to a violation of section 2913.02, 2913.03, 2913.11, 2913.21, 2913.31,
or 2919.21 of the Revised Code, and the court has reason to believe that drug
or alcohol usage by the offender was a factor leading to the criminal offense
with which the offender is charged, * * * the court may accept, prior to the
entry of a guilty plea, the offender’s request for intervention in lieu of
conviction. * * * The court may reject an offender’s request without a hearing.
If the court elects to consider an offender’s request, the court shall conduct a
hearing 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 court 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 appropriate intervention plan.
{¶ 8} R.C. 2951.041(B)(1)-(9) sets out nine eligibility requirements for ILC that a
defendant must meet. Eligibility determinations are matters of law subject to de novo review.
State v. Parker, 3d Dist. Putnam No. 12-08-08, 2009-Ohio-1835.
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{¶ 9} When Defendant’s offense was committed in 2010, paragraph (6) of R.C.
2951.041(B) required the court to find, as a prerequisite to granting ILC, that:
The offender’s drug or alcohol usage 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.
{¶ 10} Defendant argues that because the police officers who arrested him reported
that he was visibly intoxicated, he had a baggie of marijuana in his pants pocket, he admitted
that he had been smoking marijuana and drinking at a friend’s home earlier that evening, and
he has a history of marijuana and alcohol use, his drug or alcohol use was a factor leading to
his commission of the carrying concealed weapons offense. Defendant also told the
investigator who prepared the ILC report that he was under the influence of drugs and alcohol
at the time of the offense. However, Defendant told that same investigator “that he decided
to carry a firearm because Juicy Night Club is in a bad neighborhood.” Based upon that
admission by Defendant, the trial court found that Defendant failed to link his decision to
carry the firearm to his drug and alcohol use. Rather, the decision to carry the firearm seems
to have been motivated by concerns over personal safety and self-protection. The trial court
stated that in order to find Defendant eligible for ILC, the court must find that drug or alcohol
use was a factor leading to Defendant’s criminal behavior in carrying the concealed firearm,
and that on these facts the court could not make that finding.
{¶ 11} The court additionally found that ILC would demean the seriousness of the
offense in this case because Defendant’s aggressive conduct toward the security officers and
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his repeated attempts to reach into his pants pocket where the loaded handgun was hidden
while the officers were attempting to gain physical control over Defendant, constituted more
than simply a case of possession of a weapon.
{¶ 12} After reviewing this record, we conclude that the trial court did not err in
finding that Defendant failed to establish the eligibility requirement in R.C. 2951.041(B)(6),
particularly that ILC would not demean the seriousness of the offense in this case. The trial
court properly found that Defendant was ineligible for ILC.
{¶ 13} Defendant further argues that the trial court abused its discretion by denying
him ILC. Even if an offender does satisfy all of the eligibility requirements for ILC, the trial
court has discretion to determine whether the particular offender is a good candidate for ILC.
The decision whether to grant a motion for ILC lies within the trial court’s sound discretion
and will not be disturbed on appeal absent an abuse of that discretion. State v. Lindberg, 2d
Dist. Greene No. 2005CA59, 2006-Ohio-1429.
{¶ 14} “Abuse of discretion” has been defined as an attitude that is unreasonable,
arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d
1248, 1252 (1985). It is to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are unconscionable or
arbitrary.
{¶ 15} A decision is unreasonable if there is no sound reasoning process that would
support that decision. It is not enough that the reviewing court, were it deciding the issue de
novo, would not have found that reasoning process to be persuasive, perhaps in view of
countervailing reasoning processes that would support a contrary result. AAAA Enterprises,
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Inc. v. River Place Community Urban Redevelopment, Corp., 50 Ohio St.3d 157, 161, 553
N.E.2d 597 (1990).
{¶ 16} The trial court did not summarily deny Defendant’s motion for ILC without a
hearing, but rather elected to consider that request and held a hearing to determine whether
Defendant meets all of the eligibility requirements in R.C. 2951.041(B). After carefully
considering the facts and the ILC report, which recommended that Defendant’s motion for
ILC be granted, the trial court concluded that Defendant does not meet the eligibility
requirements in R.C. 2951.041(B)(6), and that in any event the court would exercise its
discretion to deny Defendant’s request for ILC because of his aggressive conduct toward the
security officers and his repeated attempts to reach his pants pocket where the gun was
concealed. No arbitrary or unreasonable decision, abuse of discretion, on the part of the trial
court is demonstrated.
{¶ 17} Defendant’s assignment of error is overruled. The judgment of the trial court
will be affirmed.
FROELICH, J., And HALL, J., concur.
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Copies mailed to:
Melissa M. Replogle, Esq.
P.J. Conboy, II, Esq.
Hon. Dennis J. Langer