[Cite as State v. Phillipeck, 2013-Ohio-2001.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 12 CAA 08 0060
FRANCIS PHILLIPECK :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
11CR-I-12-0625
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 5, 2013
APPEARANCES:
For Defendant - Appellant: For Plaintiff - Appellee:
BRIAN G. JONES CAROL HAMILTON O’BRIEN
The Law Office of Brian Jones Prosecuting Attorney
2211 U.S. Highway 23 North PETER B. RUFFING
Delaware, OH 43015 Assistant Prosecuting Attorney
140 N. Sandusky Street 3rd Floor
Delaware, OH 43015
Baldwin, J.
{¶1} Appellant Francis Phillipeck appeals a judgment of the Delaware County
Common Pleas Court convicting him of possession of heroin (R.C. 2925.11(A)) and
theft (R.C. 2913.02(A)(1)) upon a plea of guilty and sentencing him to a period of
community control not to exceed three years.
STATEMENT OF FACTS AND CASE
{¶2} On December 2, 2011, appellant was indicted by the Delaware County
Grand Jury with possession of heroin and theft. Appellant stole a toy gun from a
Meijer’s store late at night, when he was intoxicated from drug use. He had a spoon
and needle containing heroin in the pocket of his pants at the time of his arrest.
{¶3} Appellant entered a plea of guilty to both charges and sought treatment
in lieu of conviction (ILC). The case proceeded to a hearing on his motion for ILC.
The court found appellant was technically eligible for ILC pursuant to R.C. 2951.041.
The court noted that appellant, who was 25 years old, had a drug problem for an
extensive period of time, and that the information in the medical assessment and pre-
sentence investigation indicated that ILC might not demean the seriousness of the
offenses and might reduce recidivism.
{¶4} However, the trial court denied ILC for four reasons: appellant’s long
history of drug use, appellant’s lack of commitment to treatment in the past even
though his family has insurance to cover residential treatment, appellant’s refusal to
take responsibility for the death of his girlfriend who died of an overdose, and the
court’s belief that appellant stole the toy gun intending to use it to commit an additional
theft.
{¶5} Appellant assigns one error on appeal:
{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
APPELLANT TREATMENT IN LIEU OF CONVICTION WHEN THE COURT DENIED
THE REQUEST BECAUSE MR. PHILLIPECK HAD A LONG HISTORY OF DRUG
USE, HE LACKED COMMITMENT TO TREATMENT EVEN THOUGH HE HAD
INSURANCE, HE REFUSED TO TAKE RESPONSIBILITY FOR THE DEATH OF HIS
GIRLFRIEND, AND STOLE A TOY GUN AS A MEANS OF GETTING ADDITIONAL
FUNDS FOR HIS DRUG HABIT.”
I.
{¶7} Appellant, in his sole assignment of error, argues that the trial court
abused its discretion in denying his request for ILC.
{¶8} R.C. 2951.041 provides:
{¶9} “(A)(1) If an offender is charged with a criminal offense and the court
has reason to believe that drug or alcohol usage by the offender was a factor leading
to the offender's criminal behavior, the court may accept, prior to the entry of a guilty
plea, the offender's request for intervention in lieu of conviction. The request shall
include a waiver of the defendant's right to a speedy trial, the preliminary hearing, the
time period within which the grand jury may consider an indictment against the
offender, and arraignment, unless the hearing, indictment, or arraignment has already
occurred. 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.
{¶10} “(B) An offender is eligible for intervention in lieu of conviction if the
court finds all of the following:
{¶11} “(1) 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 2929.13 of the
Revised Code or with a misdemeanor.
{¶12} “(2) The offense is not a felony of the first, second, or third degree, is not
an offense of violence, is not a violation of division (A)(1) or (2) of section 2903.06 of
the Revised Code, is not a violation of division (A)(1) of section 2903.08 of the
Revised Code, is not a violation of division (A) of section 4511.19 of the Revised Code
or a municipal ordinance that is substantially similar to that division, and is not an
offense for which a sentencing court is required to impose a mandatory prison term, a
mandatory term of local incarceration, or a mandatory term of imprisonment in a jail.
{¶13} “(3) The offender is not charged with a violation of section 2925.02,
2925.03, 2925.04, or 2925.06 of the Revised Code and is not charged with a violation
of section 2925.11 of the Revised Code that is a felony of the first, second, or third
degree.
{¶14} “(4) The offender is not charged with a violation of section 2925.11 of
the Revised Code that is a felony of the fourth degree, or the offender is charged with
a violation of that section that is a felony of the fourth degree and the prosecutor in the
case has recommended that the offender be classified as being eligible for
intervention in lieu of conviction under this section.
{¶15} “(5) The offender has been assessed by an appropriately licensed
provider, certified facility, or licensed and credentialed professional, including, but not
limited to, a program licensed by the department of alcohol and drug addiction
services pursuant to section 3793.11 of the Revised Code, a program certified by that
department pursuant to section 3793.06 of the Revised Code, a public or private
hospital, the United States department of veterans affairs, another appropriate agency
of the government of the United States, or a licensed physician, psychiatrist,
psychologist, independent social worker, professional counselor, or chemical
dependency counselor for the purpose of determining the offender's eligibility for
intervention in lieu of conviction and recommending an appropriate intervention plan.
{¶16} “(6) 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.
{¶17} “(7) The alleged victim of the offense was not sixty-five years of age or
older, permanently and totally disabled, under thirteen years of age, or a peace officer
engaged in the officer's official duties at the time of the alleged offense.
{¶18} “(8) If the offender is charged with a violation of section 2925.24 of the
Revised Code, the alleged violation did not result in physical harm to any person, and
the offender previously has not been treated for drug abuse.
{¶19} “(9) The offender is willing to comply with all terms and conditions
imposed by the court pursuant to division (D) of this section.”
{¶20} A trial court has discretion to determine whether the particular defendant
is a good candidate for intervention in lieu of conviction. State v. Schmidt, 149 Ohio
App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113. An abuse of discretion involves more
than an error of judgment; it connotes an attitude on the part of the court that is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140, 1141(1983).
{¶21} We find that the trial court did not abuse its discretion in denying
appellant's request for ILC. At 25 years of age, appellant already had a long,
pervasive history of drug use. While appellant is correct that a history of drug use is
an element for eligibility, the court could also use this factor to conclude that
recidivism is likely, particularly because appellant had recently taken part in an out-
patient drug treatment program which was unsuccessful, and had not sought
residential treatment prior to his arrest despite coverage under his mother’s insurance
plan. The court speculated that appellant stole the gun intending to use it to commit
another offense. Appellant stated at the hearing that he was so intoxicated at the time
of the offense that he had no idea why he was stealing the toy gun and had no idea
what he was doing. The trial court was in a better position than this court to assess
appellant’s credibility, and the trial court clearly believed he intended to use the toy
gun to commit another theft offense while he was intoxicated on heroin.
{¶22} It is apparent from the transcript of the ILC hearing that the court did not
believe appellant truly was committed to treatment and that treatment alone would not
substantially reduce the likelihood of any future criminal activity. Treatment was built
into his community control sentence; however, the court apparently believed appellant
needed a clearer understanding of the gravity of his drug use and the potential
seriousness of the consequences of his actions while intoxicated than he would
receive from treatment alone. The trial court did not abuse its discretion in denying
appellant’s request for treatment in lieu of conviction.
{¶23} The assignment of error is overruled. The judgment of the Delaware
County Common Pleas Court is affirmed. Costs assessed to appellant.
By: Baldwin, J.
Wise, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
rad/CRB
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 12 CAA 08 0060
FRANCIS PHILLIPECK :
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Delaware County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. CRAIG R. BALDWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY