State v. Cabannis

[Cite as State v. Cabannis, 2021-Ohio-1376.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

CARLA K. CABANISS,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 19 CO 0039

Criminal Appeal from the
Municipal Court of East Liverpool, Columbiana County, Ohio
Case No. 19 CRB 00580

BEFORE:
Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.

JUDGMENT:
Affirmed

Atty. Charles I. Payne, Law Director of East Liverpool, City Prosecuting Attorney, 126
West Sixth Street, East Liverpool, Ohio 43920, for Plaintiff-Appellee, (NO BRIEF FILED),
and

Atty. Robert McDowall Jr., 415 Wyndclift Place, Youngstown, Ohio 44515, for
Defendant-Appellant.
 –2–

Dated:
April 1, 2021

Donofrio, J.

{¶1} Defendant-appellant, Carla K. Cabaniss, appeals from an East Liverpool
Municipal Court judgment entry denying her motion for intervention in lieu of conviction
(ILC). She entered a no contest plea to passing bad checks.
{¶2} On April 5, 2019, a detective swore out a criminal complaint in the East
Liverpool Municipal Court alleging that appellant violated R.C. 2913.11 by passing a bad
check for $800 to her landlord and property owner, Jean Perkins, age 81.
{¶3} A day before trial, appellant, through counsel, filed a motion to withdraw
her jury trial demand and requested that the court schedule the case for hearing on a
motion for ILC under R.C. 2951.041. The trial court canceled the jury trial, ordered the
ILC motion to be filed by September 18, 2019, and set a hearing date on the motion for
September 25, 2019.
{¶4} On August 19, 2019, the court issued a judgment entry continuing the ILC
motion deadline and hearing in order “[t]o Review the conditions precedent for filing a
Motin[sic] of Treatment in lieu of conviction for a mental condition.” The court scheduled
a “Review (Misc. Hearing)” for August 27, 2019. The docket reflects that this hearing was
labeled a miscellaneous hearing.
{¶5} On August 23, 2019, appellant’s counsel filed a motion to continue the
hearing because he had to undergo medical testing. The trial court denied the motion.
{¶6} On August 27, 2019, appellant appeared at the hearing with substitute
counsel. The court began the hearing by acknowledging that a motion for ILC was going
to be filed. The court explained that upon reviewing the ILC statute, R.C. 2951.041, it
was clear that the court could not grant an ILC motion because Jean Perkins, the victim,
was over the age of 65, and no judge “can grant or has jurisdiction to grant the Motion in
Lieu of Treatment” under the statute. The court explained that the factors in R.C.
2951.041 were conditions precedent to allowing ILC and the seventh factor in the statute,
the victim’s age, applied because Mrs. Perkins was over the age of 65, which barred an
ILC motion.

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{¶7} At this hearing, the court explained:

There’s[sic] conditions precedent that the Court has to look at and
that would prevent the motion in lieu because they’re conditions
precedent, the Court doesn’t have to grant a motion in lieu, it can do
it without a hearing. I don’t like doing that. I just don’t think it’s
necessarily appropriate in regards to this matter.

So I think you can understand what my quandary is because the case
law says that if there are any of these conditions precedent, the Court
has no authority, even if I wanted to grant the motion in lieu. And I’m
specifically looking at seven of the condition precedents in the
statute. [8/27/19 Tr. 3].

{¶8} When the prosecution responded that a full ILC motion had not actually
been filed for determination, the court stated:

Well, no, but the problem is there’s no reason to wait for it to be filed
because of the conditions precedent. Seven says, that a judge - - if
you would review with me—

* * *

If the victims of the offense is[sic] 65 years of age or older than I
cannot grant this. So there would be no reason to delay justice and
go through all of the motions, and CCHs, and all the things that the
state needs to do if the Perkinses and the victim in this case is over
the age of 65, and - - regards to this matter.

* * *

There is no point to wait for all of that when I can’t grant it if the victims
are over the age of 65. So for judicial - - I’m sure all of you read that
- - so I’m not sure if it was - - obviously, it wasn’t read before the
motion was filed, that your intent was to file that as soon as you got

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all of that done, that you requested the jury trial to be continued
because of that.

But I can’t grant this motion in lieu because the victims are, obviously
over 65. And I would think that the state could corroborate that and
you would have looked at that and known that. [[8/27/19 Tr. 4-5].

{¶9} The prosecution responded that “that is my position as to eligibility. I don’t
believe that’s a condition precedent for them being able to file it.” The court responded:

It is. And it is condition precedent for me to grant it. And there is no
reason to delay. And the case law is attached that is a complete
ineligibility. So there would be no - - you know, can you file it, but it’s
going to be - - it would be - - it wouldn’t make any sense, when you
can’t do it, I can’t grant it, and we’re going to wait and make any of
these people lack judicial timeliness on this case.

So, you know, there’s no way I can grant it. I have no power or
jurisdiction to grant it. So that’s why I brought it forward to make sure
all of you are aware of that.

So yes, I can’t grant it. No, you can file it, whatever, it will be
summarily dismissed. So if you want to do that, feel free. But the
state agrees that your victims are over the age of 65- -

* * *

THE COURT: All right. So if, you know, you want a hearing in the
future to contest that, I bet I believe everyone knows the Perkinses
are over the age of 65. So, therefore, the case law says I have no
authority. It’s a jurisdictional issue. I cannot do it. It’s a condition
precedent. So, therefore, I cannot do it. And it’s clear on its face.

So, therefore - - , I’m going to reschedule this hearing for a jury trial,
and it is going to go forward. So that’s why I had you here so that

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we are not waisting[sic] precious judicial time to give a remedy to the
individuals, and the victims, and the defendant for something that
cannot be done under Ohio law.

And the only reason I would continue this any further, and go down
all of those mental health evaluations, and all of the CCHs, and all
the other things is if there would be an issue as to the victims not
being over the age of 65.

So that is clearly a condition precedent. There is a plethora of case
law to support that. And that’s right in the statute. These are
the things that has to be done. And if so than even if I decided to
grant it, I don’t.

And I have the authority as soon as the intent that you’re going to file
this to deny it without a hearing. I’m not doing that. I gave you the
benefit of the hearing.

So in regards to this matter, I’m going to go set this case for jury trial.
And any motion intervention in this case is overruled for the reasons
that I stated. [8/27/19 Tr. 5-7].

{¶10} At appellant’s request, the trial court allowed her to file a formal motion for
ILC after the hearing, but stated that it would be summarily dismissed because the victim
was over the age of 65.
{¶11} After the hearing, on August 27, 2019, the court issued a judgment entry
stating that a motion hearing was held:

To determine the eligibility of filing a Motion in Lieu of Conviction.
The Motion is overruled. Victim Jean Perkins is over the age of 65
which is a condition precedent. The prosecutor and defense counsel
did not dispute that the age of the victim was over 65. No Judge can
grant or has jurisdiction to grant the Motion in Lieu of Treatment.

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{¶12} On August 30, 2019, appellant filed the formal motion for ILC, asserting
that the actual victim in the case was not Jean Perkins, but was her son-in-law Dennis
Giambroni, who was the property manager and under the age of 65. The trial court issued
a judgment entry indicating that the motion would be decided without a hearing and the
court overruled the motion because Jean Perkins was the named victim in the complaint
and she was over the age of 65.
{¶13} On September 4, 2019, the court held a plea and sentencing hearing in
which it explained the August 27, 2019 hearing:

As soon as I did review the statutory predicates for that - - one of the
predicates to move forward was that the victims could not be the age
of 65 or older. I have no power, or discretion, or jurisdiction - -
whatever term you want - - to grant that motion even if I would have
otherwise would have wanted to do so.

And so, therefore, we had scheduled it far out because I was looking
at defense counsel needing to get all kinds of mental health
evaluations. The state would have time to have contrary.

But when it came apparent that the Court could not grant the motion,
and that would be an expenditure of judicial time for something that
could not occur and that the Court - - it isn’t a matter of the Court’s
discretion, it’s a matter that the Court can’t grant it.

So, therefore, that motion was overruled because of that 65 years or
age of older of the written victims, which were listed in the complaint.
[9/4/19 Tr. 3].

{¶14} At the hearing, appellant waived her rights and entered a no contest plea
to passing bad checks in violation of R.C. 2913.11. She was sentenced to 180 days in
jail, 150 days suspended, was sentenced to non-reporting probation, and was ordered to
pay fines and costs. Her sentence was stayed pending this appeal.
{¶15} On September 27, 2019, appellant filed a timely appeal in this Court.
Appellant’s first assignment of error states:

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THE DENIAL OF DEFENDANT’S ILC MOTION CONSTITUTED
ABUSE OF DISCRESION[sic] BECAUSE THE TRIAL COURT
CONDUCTED THE HEARING CONTRARY TO THE ILC STATUTE
MANDATES AND IN A MANNER WHICH WAS UNREASONABLE
AND ARBIRTARY[sic].

{¶16} Appellant asserts that the court abused its discretion when it denied her
ILC without a formal motion pending. Appellant submits that even after everyone agreed
at the hearing that a formal ILC motion was not pending, the court developed its own facts
and arguments and rendered a decision without evidence, analysis or argument. She
notes that the court told her that she could still file a formal ILC motion after the hearing,
but it would be summarily denied based on the victim’s age. Appellant filed the formal
motion and asserted that the actual victim was Dennis Giambroni, Mrs. Perkins’s property
manager and son-in-law who accepted appellant’s rent check and who was under the
age of 65. As evidence, she attached an email to her from Mr. Giambroni in which he
offered to show her another property. The court issued a judgment entry finding that the
ILC motion could not be accepted because Jean Perkins was the victim alleged in the
complaint and is over the age of 65.
{¶17} Intervention in lieu of conviction is governed by R.C. 2951.041, which
provides in relevant part that:

If an offender is charged with a criminal offense, including but not
limited to a violation of section * * *2913.11 * * * 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 or that * * * at the time of committing that offense,
the offender had a mental illness, was a person with an intellectual
disability, or * * * and that the mental illness, status as a person with
an intellectual disability * * * 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.

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R.C. 2951.041(A). Section A also outlines specifics that an ILC request should contain,
such as a statement from the offender that complies with the statute’s requirements and
a waiver of a number of the defendant’s rights. The statute goes on to state that:

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 program
eligibility for intervention in lieu of conviction and recommending an
appropriate intervention plan.

R.C. 2951.041(A)(1). Section B of R.C. 2951.041 provides a list of ten factors that the
court must examine and find in a defendant’s favor before ultimately determining that he
or she is eligible for ILC. R.C. 2951.041(B). The relevant factor in this case is:

(B) An offender is eligible for intervention in lieu of conviction if the
court finds all of the following:

* * *

(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.

R.C. 2951.041(B)(7).
{¶18} ILC is a privilege, not a right. State v. Birch, 12th Dist. Butler No. CA2010-
10-256, 2012-Ohio-543, ¶ 37. The statute “does not create a legal right to ILC; rather, it
is permissive in nature and provides that the trial court may, in its discretion, grant the
defendant an opportunity to participate in the early intervention in lieu of a sentence.”
State v. Nealeigh, 2d Dist. Champaign No. 2010CA28, 2011-Ohio-1416, ¶ 9. Further,

Case No. 19 CO 0039
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“even if an offender satisfies all the eligibility requirements, a trial court has the discretion
to determine whether the particular offender is a candidate for ILC.” Id., quoting State v.
Schmidt, 149 Ohio App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113 (2d Dist.). The statute
allows the court to deny the offender’s ILC request without a hearing, but if it decides to
consider the request, the court must conduct a hearing to determine the eligibility of the
defendant. State v. Cebula, 11th Dist. Lake No. 2013-L-085, 2014-Ohio-3276, ¶17, citing
R.C. 2951.041(A)(1).
{¶19} The standard of review for a trial court's decision to deny a request for ILC
is abuse of discretion. State v. Casto, 12th Dist. Clinton No. CA2008-08-033, 2009-Ohio-
791, ¶ 12. Abuse of discretion is a determination that the “trial court's decision was
unreasonable, arbitrary or unconscionable.” State v. Perkins, 12th Dist. Clinton No.
CA2005-01-002, 2005-Ohio-6557, ¶ 8. However, “a trial court's interpretation and
application of the statutory eligibility requirements for intervention is a matter of law
subject to a de novo review.” State v. Geraci, 10th Dist. Franklin No. 04AP-26, 2004-Ohio-
6128, ¶ 5, citing State v. Sufronko, 105 Ohio App.3d 504, 506, 664 N.E.2d 596 (4th Dist.
1995).
{¶20} The language of R.C. 2951.041(A)(1) is “inartful,” because trial courts
essentially “consider” ILC motions by making any kind of ruling on them. See State v.
Branch, 2d Dist. Montgomery No. 25261, 2013-Ohio-2350, at ¶ 12. Further, the statute
leaves unanswered the hearing requirements on an offender’s request for ILC, such as
whether it is a full evidentiary hearing or just the opportunity to be heard, like in an
allocution. Id.
{¶21} Appellant contends that the court’s scheduling of dates for filing a formal
ILC motion and hearing meant that it agreed to consider a full motion and was required
to order an assessment and full hearing. We find no merit to this assertion because the
court continued those dates and scheduled a hearing to review what it called “the eligibility
of filing an ILC motion.” (See 8/27/2019 J.E.). The mere scheduling of dates concerning
a formal ILC motion does not obligate the court to proceed with an assessment or formal
hearing, especially here when the court continued those dates and held a hearing to
determine whether an ILC motion should be filed.

Case No. 19 CO 0039
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{¶22} The court also rejects appellant’s assertions that the court abused its
discretion when it sua sponte continued the ILC deadlines and scheduled the
“miscellaneous” hearing. Appellant contends that the court did so with little notice to the
parties and without a clear indication of the nature and scope of the hearing. The trial
court may sua sponte continue proceedings so long as the record demonstrates that the
continuance was reasonable, unless the reasonableness cannot seriously be questioned.
State v. Lee, 48 Ohio St.2d 208, 209, 357 N.E.2d 1095 (1976). The trial court’s
continuance and scheduling of the “miscellaneous” hearing was reasonable. Appellant
filed her motion to withdraw jury trial and set the case for an ILC motion hearing on August
14, 2019. The court scheduled the ILC motion to be filed by September 18, 2019 and
scheduled a motion hearing for September 25, 2019. The trial court issued a judgment
entry on August 19, 2019 continuing those and specifically stated that the reason for the
continuance was to review conditions precedent for filing an ILC motion for a mental
condition. The court continued the case until August 27, 2019 and indicated that it was
going to be a “Review (Misc. Hearing).” This Court finds that the eight-day notice for the
hearing was reasonable and the trial court gave the parties reasonable notice of the
nature and scope of the hearing when it stated its reason for the continuance.
{¶23} Appellant further asserts that the trial court abused its discretion when it
found her ineligible for ILC without the required motion pending before it and developed
facts and argument without input, evidence, or argument by counsel. She contends that
the court should have not proceeded to determine the eligibility factors in R.C.
2951.041(B) without allowing her to present evidence that Mrs. Perkins’s son-in-law was
the actual victim and he was under the age of 65.
{¶24} The trial court was aware that a formal motion for ILC was not pending
before it as its August 27, 2019 judgment entry states that the parties appeared for a
“Motion hearing to determine the eligibility of filing a Motion in Lieu of Conviction.” The
court explained at the “miscellaneous” hearing that it could not grant appellant ILC
because the victim was over the age of 65 as indicated in the criminal complaint. The
court reasoned that the victim’s age is factor number seven for determining ILC eligibility
and all ten of these factors were “conditions precedent” to granting ILC. The court

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concluded that there was no need for more formal proceedings concerning ILC or a formal
ILC motion because Mrs. Perkins was over the age of 65.
{¶25} Appellant asserts that the court had no authority for the procedure it used
at the hearing by first determining eligibility under R.C. 2951.041(B) and then ordering an
assessment and intervention plan. However, the Second District Court of Appeals
appears to have acknowledged such a procedure when highlighting the “inartful”
language of the R.C. 2951.041 and its lack of clear instructions.
{¶26} In State v. Branch, 2d Dist. Montgomery No. 25261, 2013-Ohio-2350, ¶ 12,
the court explained that the language of the statute could be read to find that a court can
reject an ILC “out of hand without even ‘considering’ statutory factors or discretionary
factors.” The court found that another reading of the statute was that “if a defendant is
statutorily eligible (i.e. none of the factors in R.C. 2951.041(B) makes the applicant
ineligible) and the trial court “considers” the eligible factors being granted for ILC, the
court must order an assessment and hold a hearing. Id. The trial court in Branch had
determined without a hearing that the defendant was ineligible for ILC under one of the
eligibility factors in R.C. 2951.041(B). The court orally denied the defendant’s motion for
ILC after reviewing an ILC eligibility report subsequent to an assessment. The appellate
court did not need to resolve the issue of whether the trial court erred in denying a hearing
on the ILC motion even though it considered an eligibility factor because this issue was
not raised. Id. ¶ 14. The appellate court ultimately held that even though it disagreed with
the trial court’s determination, the trial court did not abuse its discretion by denying
defendant’s motion for ILC based upon the eligibility factor that granting ILC would
demean the seriousness of the offense. Id.
{¶27} In State v. Stanton, 2d Dist. Montgomery No. 25298, 2013-Ohio-1825, the
defendant filed an ILC motion and a hearing was held, where the court stated to counsel
that the issue of ILC was going to be explored and a brief discussion ensued. At the end
of that hearing, the court indicated that a status hearing would be held at a later time to
decide what to do. The court scheduled a status conference and briefly discussed the
ILC motion during that hearing. Three days later, the court denied the ILC motion. The
Second District held that because the trial court did not order an assessment as required
by R.C. 2951.041(A), it did not actually hold a hearing on the motion for ILC. Id. The

Case No. 19 CO 0039
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court further held that the trial court’s decision to not hold a hearing to determine eligibility
for ILC was not subject to appellate review because a substantial right was not affected.
Id.
{¶28} These cases provide support for the trial court’s procedure and rulings in
this case. However, in State v. Miles, the case cited by appellant, the Second District
again looked at ILC and held that “[w]e conclude, since ILC is dependent upon the R.C.
2951.041(B) eligibility requirements being met, that consideration of an ILC motion occurs
when the trial court reviews, that is considers, the eligibility requirements.” 2d Dist.
Greene No. 2016-CA-38, 2017-Ohio-7639, ¶ 12. The Second District held that even
though an assessment was obtained, the trial court overruled the motion for ILC before it
was able to review the assessment and thus eligibility factors had not been considered.
{¶29} The instant case is distinguishable from Miles because in this case, no
formal motion for ILC was pending before the court. Rather, the court held a
“miscellaneous” hearing and informed the parties that it was legally impossible for a
formal motion for ILC to be granted because the victim’s age barred her from
consideration for ILC. The court found that the criminal complaint established this factor
because the complaint identified Mrs. Perkins as the victim and listed her birthdate.
{¶30} This Court agrees that the trial court’s “miscellaneous” hearing, statements
made at the hearing, and the procedures followed in this case could have been clearer.
However, R.C. 2951.041(A) is inartfully drafted and its procedures are ill-defined.
Nevertheless, the court here held a hearing on the viability of filing a formal ILC motion,
and while it could have denied the request for ILC without any hearing at all, the court
chose to hold a hearing to explain its reasoning. This Court thus finds that the trial court
did not abuse its discretion by holding the “miscellaneous” hearing, not ordering an
assessment, continuing the deadlines for filing a formal ILC motion and hearing, and
finding that a formal ILC motion could not be granted.
{¶31} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
{¶32} In her second assignment of error, appellant asserts:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DETERMINED THE VICTIMS OF THE UNDERLYLING CRIME

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WERE OVER THE AGE OF SIXTY-FIVE RENDERING
DEFENDANT INELIGIBLE FOR ILC.

{¶33} Appellant asserts that this Court should conduct a de novo review of the
trial court’s finding concerning the ages of the victims and find that Mr. Giambroni is the
victim as appellant rented the property from him, she presented the check to him, and he
held himself out as the property owner. This Court agrees that ILC eligibility
determinations are matters of law subject to a de novo review. See State v. Casto, 12th
Dist. Clinton No. CA2008-08-033, 2009-Ohio-791, ¶ 12, citing State v. Geraci, Franklin
App. No. 04AP-26, 2004-Ohio-6128, ¶ 5, citing State v. Sufronko 105 Ohio App.3d 504,
506, 664 N.E.2d 596 (4th Dist. 1995).
{¶34} In State v. Seawell, 12th Dist. Warren No. CA2019-05-050, 2020-Ohio-
155, the Twelfth District Court of Appeals applied the de novo standard of review to the
trial court’s finding that the defendant was eligible for ILC under R.C. 2951.041(B). The
defendant pled guilty to third-degree felonies and the trial court granted his motion for
ILC. The state appealed, asserting that the trial court lacked authority to grant ILC
because Seawell was ineligible under R.C. 2951.041(B)(2), which provides that the
offenses to which a defendant pleads guilty cannot be first, second, or third-degree
felonies. In conducting its de novo review, the court held:

The primary goal of statutory interpretation is to ascertain and give
effect to the legislature's intent in enacting the statute. State v.
Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471. This
court must first look to the plain language of the statute to determine
the intent. State ex rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78,
81, 676 N.E.2d 519 (1997). When the statute's meaning is
unambiguous and definite, we apply the statute as written and no
further interpretation is necessary.

Id. ¶ 6. The court found that the language of R.C. 2951.041(B) was not ambiguous,
looked to its plain language, and held that the legislature required that an ILC applicant
meet “all of the ten” requirements and the court therefore erred by granting the defendant
ILC when he did not meet the R.C. 2951.041(B)(2). Id.

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{¶35} Similarly in the instant case, appellant did not meet the eligibility
requirement in R.C. 2951.041(B)(7) because the victim was 65 years or older. In Duvall,
2d Dist. Greene No. 2008-CA-80, 2009-Ohio-6580, the defendant was indicted for
complicity to commit theft from an elderly person. The trial court ordered that she undergo
evaluation by a clinical psychologist to determine whether she met the requirements for
ILC. The psychologist recommended that the court deny the motion because Duvall did
not need treatment and drug abuse did not appear to be a factor in the crime. Id. She
appealed, and the State argued on appeal that even if the psychologist was wrong, Duvall
was nevertheless ineligible for ILC because the alleged victims of her crime were over 65
years old.
{¶36} The Second District agreed with the State and inferred that the victims were
65 years of age or over based upon the indictment, which charged Duvall with complicity
under the theft statute that also contained the definition of an elderly person as a person
65 years old or older. The court held that “the General Assembly has seen fit to limit the
trial court’s discretion by making it unlawful for the court to grant a motion for treatment in
lieu of conviction when the alleged victim is sixty-five years of age or older. It has in effect
removed the court’s discretion in such a situation -the situation we find here.” Id. at ¶ 5.
In concluding that the defendant was ineligible for ILC under R.C. 2951.041(B)(7), the
court reviewed the language of the theft statute concerning theft from an elderly person,
the indictment, and the definition of “elderly person” in Chapter 2913 to infer that the victim
in the case was age 65 or older. Id.
{¶37} In State v. Foreman, the Eighth District reversed part of the trial court’s
determination that Foreman was eligible for ILC on two counts. One of the seven counts
charged her with identity theft, with a furthermore clause indicating that the victim of the
offense was an elderly person. Another count charged her with child endangerment of
an eleven-year-old. The court referred Foreman to a psychologist and placed her in the
ILC program. The State appealed, asserting that Foreman was ineligible for ILC because
the victim of the identity theft was over the age of 65 and the victim of child endangerment
was under the age of 13, in violation of R.C. 2951.041(B)(7). The appellate court quoted
R.C. 2951.041(B)(7) and noted the abuse of discretion standard for granting a motion for
ILC and the de novo standard for determining the factors for eligibility for ILC. The

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appellate court reviewed the record and found that Foreman was not eligible for ILC under
R.C. 2951.041(B)(7) on the identity theft and child endangerment counts because of the
victims’ ages. While the court found that the trial court erred by granting the motion for
ILC on these counts, Foreman could still be granted ILC on the other counts.
{¶38} Appellant here asserts that while a charging instrument is entitled to some
weight, it is not dispositive of the issue. She cites to State v. Drake, 192 Ohio App.3d
216, 2011-Ohio-25, 948 N.E.2d 965 (2d Dist.) and State v. Sorrell, 187 Ohio App.3d 286,
2010-Ohio-1618, 931 N.E.2d 1135 (2d Dist.) in support. However, those cases deal with
trial courts’ findings that noncustodial parents charged with nonpayment of child support
were not eligible for ILC. Id. Looking to various statutory and legal dictionary definitions
of the word “victim,” the language and legislative intent behind R.C. 2951.041(B)(7), and
Ohio child support laws, the appellate courts held that for purposes of R.C.
2951.041(B)(7), the victims of the nonpayment of support were not the minor children, but
the custodial parents to whom the support was supposed to be made.
{¶39} The courts acknowledged that the indictments in those cases identified the
minor children, but they looked at the definition of “victim” under R.C. 2930.01(H)(1),
which is “[a] person who is identified as the victim of a crime or specified delinquent act
in a police report or in a complaint, indictment, or information that charges the commission
of a crime and provides the basis for the criminal prosecution…and subsequent
proceedings to which this chapter makes reference.” Id., quoting R.C. 2930.01(H)(1). The
appellate courts also looked to the definition of “victim” under R.C. 2743.51 (L)(1), which
provides that a “victim” is “a person who suffers personal injury or death as a result of ***
[c]riminally tortious conduct.” R.C. 2743.51(L)(1). They also reviewed the definition of
“victim” in Black’s Law Dictionary, which provides that a “victim” is “the person who is the
object of a crime or tort.” (5th Ed. 1979) 1405. The courts reviewed Ohio child support
laws and procedures and found that when the noncustodial parent does not pay, the
custodial parent is the payee who does not receive the child support payment. Id.
{¶40} Finally, the Drake and Sorrell courts looked to the language of and
legislative intent behind R.C. 2951.041(B)(7) and determined that it did not apply to
minors between the ages of 13 and 17 and thus its intent was to protect very young
children. Drake at ¶ 24; Sorrell at ¶ 18. The appellate courts noted that many

Case No. 19 CO 0039
 – 16 –

beneficiaries of child support were older than 13 and thus the “legislative intent was not
to exclude nonsupport cases from ILC eligibility.” Id.
{¶41} In the instant case, the victim of appellant’s crime in passing the bad check
was Mrs. Perkins, the landlord and owner of the property that appellant was renting.
Appellant does not explain how her belief that Mr. Giambroni owned the property or
whether he held himself out as owner would have had any bearing on who the actual
injured party was. Further, appellant acknowledges that she was instructed to make her
rental checks payable to Jean Perkins. Thus, the victim in this case is Mrs. Perkins, who
is over the age of 65. Appellant is therefore not eligible for ILC under R.C. 2951.041(B)(7).
{¶42} Accordingly, appellant’s second assignment of error lacks merit and is
overruled.
{¶43} In her final assignment of error, Appellant asserts:

DEFENDANT IS ENTITLED TO A FULL EVIDENTIARY HEARING
ON ANY ILC REMAND.

{¶44} Appellant correctly points out that the nature and scope of the ILC eligibility
hearing procedure is not delineated by the statute, the legislature, or the courts. She
acknowledges that a court may summarily deny an ILC motion without a hearing.
However, she uses Rule 32.1 of the Ohio Rules of Criminal Procedure as a framework to
set forth a 3-step process that the trial court should use if this case is remanded and an
ILC eligibility hearing is held.
{¶45} Since we find that appellant’s prior assignments lack merit, appellant’s
third assignment of error lacks merit and is overruled.
{¶46} For the reasons stated above, the trial court’s judgment is hereby affirmed.

Robb, J., concurs.

D’Apolito, J., concurs.

Case No. 19 CO 0039
[Cite as State v. Cabannis, 2021-Ohio-1376.]

For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Municipal Court of East Liverpool of Columbiana County, Ohio, is affirmed. Costs to be
waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.