Allowing Individuals To Participate In The Intervention In Lieu Of Conviction Treatment Program In Multiple Jurisdictions: A Case In Support Of Accepting Individuals Currently Treating In The Intervention In Lieu Of Conviction Program In One Court’s Jurisdiction Into A Second Court’s Intervention In Lieu Of Conviction Program If Same Conduct Can Be Shown

First off, that is one hell of a title I came up with to discuss Intervention in Lieu of Conviction (ILC).  I am not even sure what the hell I was trying to convey in the title, but it sure does look like someone smart wrote it.  Or, it looks like a guy that can’t think and write at the same time wrote it.  I am going with the former.

In case you are not aware, but our society has a bit of a substance abuse problem.  Whether it is drugs or alcohol, us Americans love taking mass quantities of said substances.  Obviously, this leads to a majority of individuals abusing drugs and/or alcohol to a potential life of crime to support their habit.  This of course is a very basic interpretation of substance abuse and crime, but it gets the point across.  So we now have a society of individuals who turned to a life of crime due to their substance abuse and are screaming for help.  To boot, these individuals commit non-violent crimes in order to support their habit.  Recognizing that locking up individuals who commit non-violent crimes with substance abuse problems is not the answer, the Ohio State Legislature enacted Intervention in Lieu of Conviction.

Ohio Supreme Court Justice, Paul Pfeifer stated the following with regards to ILC:

“In Ohio, we have a law that we call intervention in lieu of conviction or ILC.  The law states that if a person is charged with a criminal offense, and the court has reason to believe that the drug or alcohol usage was a factor leading to the offense, the court may accept the offender’s request for intervention in lieu of conviction.

When the Ohio legislature enacted the ILC law, it made a determination that when chemical abuse is the cause – or at least a precipitating factor in the commission of a crime – it may be more beneficial to the individual and the community as a whole to treat the cause rather than punish the crime.

For that reason, ILC isn’t designed as punishment.  It’s an opportunity for first-time offenders to receive help for their dependence without the ramifications of a felony conviction.

In keeping with that goal, the ILC law has a section that states if the court grants an offender’s request for ILC, and the offender successfully completes the intervention plan, the court shall dismiss the proceedings against the offender.”

As Justice Pfeifer explained, an individual can receive treatment through the ILC program as well as having their case dismissed if the individual successfully completes the ILC program.  That is a huge win!  Avoid prison and a felony conviction, can’t really beat that one.  However, even with the ILC program, more and more individuals are reoffending.  The death grip drugs and alcohol have over an individual is truly fighting.

Just google heroin addiction, alcohol addiction, opiate addiction, etc. and you will find yourself reading testimonies of addicts describing how easy it is to reoffend or relapse.  I found story about a woman by the name of Vanessa, from the U.K., who has been 17 years sober from heroin.  She stated that “once addicted, your life becomes a dedication to your addiction.”  I find her words to be profound in the struggle against drug/alcohol addiction.

Alright Kopacz, so what the hell are you getting at here?  What I am getting at is that I truly believe that the ILC program is an excellent legislative initiative, but it does not go far enough to cover individuals who would be otherwise eligible for a court’s ILC program had they not been involved with a different court’s ILC program.  To help illustrate my point, let’s take a look State v. Greathouse, 2016-Ohio-1350.

In Greathouse, Greathouse moved the Medina County Common Pleas Court to accept her into an ILC program.  At the initial hearing, Greathouse was referred to the probation department for an assessment and the court requested supplemental briefing.

In support of her motion for ILC, Greathouse admitted that she previously pled guilty to non-violent charges in Summit County, and at the time of her motion she was currently on ILC for those charges.   Greathouse, however, argued that she had not been adjudicated guilty in the Summit County because if she completes the ILC program, the charges would be dismissed.  Greathouse went on to argue that because she had not yet completed an ILC program, she had not been “through” an ILC programs as contemplated by R.C. 2951.041 (B)(1).

The state filed a motion in opposition to Greathouse’s motion for ILC.  After what I am sure was just a bunch whining, the state argued that Greathouse would only be eligible for ILC if the state recommended her participation in the ILC program and the state would not do so.

Taking all arguments into consideration, the trial court held that under R.C. 251.041 (B)(1), Greathouse was eligible for the for ILC and granted her motion.  The state soon after appealed the trial court’s decision.

Before getting into the trial court and appellate court’s analysis, let’s take a look at R.C. 2951.041 (B)(1).

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

(1)  The offender previously has not been convicted of or pleaded guilty to a felony offense of violence or previously has been convicted of or pleaded guilty to any felony that is not an offense of violence and the prosecuting attorney recommends that the offender be found eligible for participation in intervention in lieu of treatment under this section, previously has not been through intervention in lieu of conviction under this section or any similar regime….

Looking at R.C. 2951.041 (B)(1), the appellate court held that since Greathouse pled guilty in Summit County, she would need the state’s approval for ILC in Medina County and because the state said no to ILC, Greathouse is shit out of luck.  What is interesting to note is that the appellate court’s reasoning had little to nothing to do with what the trial court held when it granted Greathouse’s motion for ILC.  In fact, the appellate court states, “We not that the trial court’s analysis focused on a different aspect of R.C. 2951.041 (B)(1).  However, because we conclude that Ms. Greathouse is ineligible for ILC for the reasons discussed, and it would be necessary for her to satisfy all of the requirements in order to participate, we need not evaluate the merits of the trial court’s reasoning.”

The trial court, in its reasoning, looked at Greathouse’s criminal course of conduct in Summit County and Medina County to determine if said criminal course of conduct was in fact of the same criminal course of conduct.  To support its decision that Greathouse’s criminal course of conduct was of the same conduct, the trial court used State v. Drager, 2006-Ohio-2329 and State v. Leisten, 2006-Ohio-805.

In Drager, Drager was indicted in Montgomery County and Greene County.  Prior to any court hearing in Greene County, Drager was accepted into Montgomery County’s ILC Program.  When Drager moved the Greene County Court for ILC through its progragm, the trial court was aware of Drager’s Montgomery County ILC Program and subsequently denied Drager based on already participating in an ILC Program.

The Second District Court of Appeals found “given Drager’s very successful progress through intervention in Montgomery County, and given that the Greene County offenses was part of the same course of conduct that resulted in the Montgomery County offenses (and the ongoing successful intervention in Montgomery County), we conclude that the trial court abused its discretion when it determined that Drager was not a suitable candidate for intervention due to his misdemeanor criminal history.”

However, in Lesiten, the Second District Court of Appeals held that “under Ohio Revised Code 2951.041 (B)(1), prior participation in lieu of conviction or similar regime renders an offender ineligible for intervention in lieu of conviction.”

To reconcile these two decisions, trial court for Greathouse found that the offenses that occurred in separate counties need to be the same course of conduct.  Thus, allowing Greathouse to be accepted into the ILC program.

Personally, I believe that the trial court in Greathouse’s case got it right.  I think courts should look to the criminal course of conduct instead of immidately rejecting a defendant who is currently going through ILC.

Side note, I looked up Greathouse’s case to see what actions were taken after the appellate court reversed and remanded the trial court’s decision.  Sadly, Greathouse’s bond was revoked for her failure to abide by terms and conditions of her bond.  I am willing to bet that not using drugs was part of her terms and conditions.

 

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