Opinion
Appellate Court Case No. 28921
01-21-2021
STATE OF OHIO Plaintiff-Appellee v. JENNIFER SLACK Defendant-Appellant
Copies to: Travis Kane 130 W. Second Street, Suite 460 Dayton, Ohio 45402 Attorney for Appellant Andrew French 301 W. Third Street, 5th Floor Dayton, Ohio 45422 Attorney for Appellee Hon. Dennis J. Adkins Montgomery County Common Pleas Court 41 N. Perry Street P.O. Box 972 Dayton, Ohio 45422
Trial Court Case No. 2020 CR 00359 /2 [Criminal Appeal from Common Pleas Court]
DECISION AND FINAL JUDGMENT ENTRY
PER CURIAM:
{¶ 1} This matter is before the court on the State of Ohio's motion to dismiss. The State asserts that the order on appeal, a September 11, 2020 "Decision and Order of Intervention in Lieu of Conviction," is not a final appealable order. Appellant, Jennifer Slack, argues that the appeal should proceed. We dismiss.
{¶ 2} An appellate court has jurisdiction to review only final orders or judgments of the lower courts in its district. Section 3(B)(2), Article IV, Ohio Constitution; R.C. 2505.02. We have no jurisdiction to review an order or judgment that is not final, and an appeal therefrom must be dismissed. Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44 Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).
{¶ 3} R.C. 2505.02 defines final orders. In an appeal from a criminal case, the final order is usually the sentencing entry journalized at the conclusion of the case. An entry concluding or resolving a case is generally considered a final order under R.C. 2505.02(B)(1), as it is an "order that affects a substantial right in an action that in effect determines the action and prevents a judgment." In criminal cases, the Supreme Court of Ohio has tied finality under R.C. 2505.02 to the requirements of Crim.R. 32(C):
Crim.R. 32(C) lists the requirements for a valid final judgment in a criminal case. It provides that a judgment must set forth the fact of the conviction, the sentence, the judge's signature, and the time stamp indicating that the clerk entered the judgment in the journal. We have said that such a judgment "is a final order subject to appeal under R.C. 2505.02." State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 1.(Emphasis added.) State v. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-4562, 35 N.E.3d 493, ¶ 8. Although the sentencing entry is generally the final order in a criminal case, "some other orders may be considered final and appealable before a [criminal] case has been resolved where the order satisfies one of the statutory definitions." State v. Glynn, 2d Dist. Montgomery No. 28824, 2020-Ohio-7031, ¶ 4, citing State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶ 8. One notable exception is an order denying a motion to dismiss on double-jeopardy grounds. See State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23.
{¶ 4} An order granting intervention in lieu of conviction (ILC) does not, by its nature, contain a conviction or a sentence, and thus does not satisfy Crim.R. 32(C) and correspondingly R.C. 2505.02(B)(1). Rather, an order granting ILC generally stays the pending criminal proceedings while the defendant complies with the terms and conditions of the intervention plan. See R.C. 2951.041(C). If appellant successfully completes the ILC plan, no conviction will be entered and the case will be dismissed. R.C. 2951.041(E). If the defendant is unsuccessful in complying with the terms of ILC, the court may "enter a finding of guilty and impose an appropriate sanction under Chapter 2929. of the Revised Code." R.C. 2951.041(F). But the court could also continue or change ILC. Id. In short, a criminal case is not yet complete when a trial court first grants ILC.
{¶ 5} Consequently, this court and others have held that a decision granting ILC is not a final appealable order. See, e.g., State v. Hightower-Goins, 2d Dist. Montgomery No. 28744 (Oct. 7, 2020); State v. Woods, 2d Dist. Montgomery No. 28479 (Sep. 24, 2019); State v. Lewis, 2d Dist. Champaign No. 2016-CA-29, 2017-Ohio-8604, ¶ 3-7; State v. Dempsey, 8th Dist. Cuyahoga No. 82154, 2003-Ohio-2579, ¶ 9; State v. Bellman, 9th Dist. Lorain No. 15CA010525, 2015-Ohio-2303, ¶ 10.
{¶ 6} Another section of the statute defining final orders permits an appeal from an "order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment." R.C. 2505.02(B)(2). But "courts uniformly reject the notion that intervention in lieu of conviction satisfies a final order under R.C. 2505.02(B)(2), largely hinging their determinations on the permissive nature of the statute." In re B.D., 2020-Ohio-4128, 157 N.E.3d 400, ¶ 9 (1st Dist.). "Courts have consistently noted that the opportunity to participate in ILC is not a right, but a privilege." State v. Zepeda, 6th Dist. Wood No. WD-13-003, 2014-Ohio-1311, ¶ 12, citing Dempsey at ¶ 9 and State v. Birch, 12th Dist. Butler No. CA2010-10-25602, 2012-Ohio-543, ¶ 37. In other words, because there is categorically no right to ILC, State v. Rice, 180 Ohio App.3d 599, 2009-Ohio-162, 906 N.E.2d 506, ¶ 14 (2d Dist.), there can be no right that a defendant is entitled to enforce, i.e., no substantial right. See R.C. 2505.02(A)(1) (defining a "substantial right" for purposes of R.C. 2505.02(B)(2) as "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect"). Without an enforceable substantial right, an order granting ILC does not satisfy R.C. 2505.02(B)(2).
At least one court has held that ILC represents a special proceeding. See State v. Boehm, 5th Dist. Licking No. 16-CA-77, 2017-Ohio-4285, ¶ 24 ("An ILC proceeding, however, is neither criminal nor civil. R.C. 2505.02 defines special proceeding as 'an action or proceeding that is specially created by statute.' The ILC hearing was a special proceeding created by R.C. 2951.041"). However, the Supreme Court of Ohio has held that "it is the underlying action that must be examined to determine whether an order was entered in a special proceeding," rather than the order itself or particular issue raised therein. Walters v. Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d 118, 121, 676 N.E.2d 890 (1997) ("The type of order being considered is immaterial"); but see State v. Thompson, 147 Ohio St.3d 29, 2016 -Ohio-2769, 59 N.E.3d 1264, ¶ 12 (concluding that an order resolving a motion for jail-time credit filed in a criminal case is a special proceeding). A criminal case would not be considered a special proceeding. State v. Saadey, 7th Dist. Columbiana No. 99 CO 49, 2000 WL 1114519, *2 (June 30, 2000).
Similar analysis has been applied to orders denying shock probation. See, e.g., State v. Coffman, 91 Ohio St.3d 125, 742 N.E.2d 644 (2001) (there is no right to shock probation, and therefore no substantial right or final order). This court has urged the Supreme Court of Ohio to revisit this analysis. See, e.g., State v. McBroom, 2d Dist. Montgomery No. 26578, 2015-Ohio-4719, ¶ 4; State v. Cline, 2d Dist. Champaign No. 20CA18 (Dec. 4, 2020) (dismissing appeal; dismissal appealed and currently pending before the Supreme Court of Ohio as Case No. 2020-1550).
{¶ 7} In contrast, some districts have allowed the State to appeal decisions granting ILC. See, e.g., State v. Casto, 12th Dist. Clinton No. CA2008-08-033, 2009-Ohio-791, ¶ 8-10 (finding the State had a substantial right); State v. Weaver, 2018-Ohio-174, 104 N.E.3d 117, ¶ 6-8 (8th Dist.) (relying on Casto); State v. Boehm, 5th Dist. Licking No. 16-CA-77, 2017-Ohio-4285, ¶ 24 (reviewing ILC order on a State's appeal without explicitly determining whether it was final); State v. Seawell, 2020-Ohio-155, 151 N.E.3d 951 (12th Dist.) (same); State v. Radebaugh, 3rd Dist. Marion No. 9-14-13, 2015-Ohio-1186, ¶ 5, fn. 1, citing Casto and State v. Fisher, 3d Dist. Seneca No. 13-97-40, 1998 WL 195678 (Apr. 21, 1998) ("if it were the State appealing the granting of the motion, it would affect the substantial right of the State to seek a conviction if the intervention were successfully completed, and thus would be a final appealable order for the purposes of the State").
The State may seek a discretionary appeal from "any other order" in a criminal case in addition to those it may appeal as of right. R.C. 2945.67(A). This court has held that the "other order" must be a final order, or merge into a final order, before the State may seek leave to appeal it. State v. Gillispie, 2d Dist. Montgomery No. 28766, 2020-Ohio-7032, ¶ 6; App.R. 5(C). Ohio case law has historically been inconsistent on this point. See State v. Jones, 2017-Ohio-5758, 94 N.E.3d 971, ¶ 9 (2d Dist.), quoting Painter & Pollis, Ohio Appellate Practice, Section 2:28 (2016) (" 'Neither [R.C. 2945.67(A)] nor the case law explains clearly whether a party invoking the statute must separately establish appellate jurisdiction (by invoking one of the categories of "final order" under R.C. 2505.02, for example), or whether instead the statute itself * * * serves as an independent basis for asserting appellate jurisdiction' ").
{¶ 8} Decisions denying ILC are routinely reviewed on direct appeal from a conviction and sentence. See, e.g., State v. Nealeigh, 2d Dist. Champaign No. 2010CA28, 2011-Ohio-1416; Rice, 180 Ohio App.3d 599, 2009-Ohio-162, 906 N.E.2d 506 (2d Dist.); State v. Schmidt, 149 Ohio App.3d 89, 2002-Ohio-3923, 776 N.E.2d 113 (2d Dist.); State v. Fullenkamp, 2d Dist. Darke No. 2001CA1543, 2001 WL 1295372 (Oct. 26, 2001); State v. Roome, 2017-Ohio-4230, 92 N.E.3d 59 (12th Dist.); but see State v. Bach, 12th Dist. Warren No. CA2005-05-057, 2006-Ohio-501 (finding claim waived because defendant entered a guilty plea). Similarly, a conviction and sentence entered after ILC is granted, but unsuccessfully completed or revoked, can be appealed after sentencing. See, e.g., State v. Zepeda, 6th Dist. Wood No. WD-13-003, 2014-Ohio-1311.
{¶ 9} But, orders granting ILC (or most often, challenging the terms of an intervention plan) have generally been deemed not appealable by the defendant under R.C. 2505.02(B)(1) and (B)(2) when entered. Indeed, if the terms of ILC are satisfied and the matter dismissed, the issue might become moot. See State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, ¶ 4, fn. 1 (suggesting an appeal would be moot after successful completion of the intervention plan). This may be the best case scenario for a defendant, having sought and received ILC and exiting the court system without a conviction. But it does not appear that a defendant can ever challenge the terms of an intervention plan before satisfying the plan, even with an argument that the terms are manifestly unfair or legally inappropriate. But see Dempsey at ¶ 10 ("defendant did not have to agree to the intervention plan. Instead, he could have opted to have his case treated as any other criminal case. That is, he could have pleaded guilty and received a sentence, or pleaded not guilty and received a trial, after which he would have either been acquitted or found guilty and sentenced accordingly").
This court recently held that the nature of an anticipated assignment of error in an ILC appeal does not impact this jurisdictional question. Hightower-Goins, 2d Dist. Montgomery No. 28744, ¶ 7.
{¶ 10} In this case, in response to the State's motion to dismiss, Slack asserts that she intends to seek review of the trial court's order that she pay restitution as a condition of ILC. She cites State v. Welden, 12th Dist. Warren No. CA2011-01-005, 2011-Ohio-4345, in which the defendant appealed the "order of restitution imposed by the Warren County Court of Common Pleas following its decision granting appellant's request for intervention in lieu of conviction." Welden at ¶ 1. The Twelfth District heard the appeal; Slack urges us to do the same.
{¶ 11} We first note that the Welden court did not address the finality of an order granting ILC. The defendant in Welden was granted ILC in June 2009, and subsequently, in January 2011, was ordered to pay restitution as a condition of ILC. Id. at ¶ 2-4. The defendant appealed the January 2011 order, rather than the ILC order, and the court heard it without discussing finality.
{¶ 12} In contrast to the Twelfth District's decision in Welden, the Ninth District has held that a restitution order issued as part of an ILC plan did not satisfy any of the three potentially relevant definitions of a final order in R.C. 2505.02(B). See State v. Bellman, 9th Dist. Lorain No. 15CA010525, 2015-Ohio-2303. The defendant in Bellman moved for ILC and pled guilty. The trial court accepted his plea and granted ILC. Id. at ¶ 3. Some months later, the court held a restitution hearing and ordered the defendant to pay restitution. The defendant appealed the restitution order. Id. at ¶ 4-5.
{¶ 13} The Ninth District dismissed, finding that the order on appeal did not satisfy any of the relevant statutory provisions:
An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;R.C. 2505.02(B). Consistent with the authorities outlined above, the court reasoned that the order was not final under divisions (B)(1) or (B)(2):
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
* * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in the action.
To begin, we note that the trial court's order requiring Mr. Bellman to pay restitution as part of his intervention plan did not determine the action. Although Mr. Bellman pled guilty to receiving stolen property, the trial court elected not to enter a conviction. Instead, the trial court granted Mr. Bellman's request for intervention in lieu of conviction and stayed the criminal proceeding. The trial court's ordered intervention plan contemplates further judicial action based on Mr. Bellman's compliance with his intervention
conditions. Thus, we conclude that the trial court's ordered intervention plan is not a final, appealable order under R.C. 2505.02(B)(1).
Moreover, R.C. 2505.02(A)(1) defines a substantial right as "a right that the United States Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce or protect." It is essentially "a legal right that is enforced and protected by law." State v. Coffman, 91 Ohio St.3d 125, 127 (2001), citing Cleveland v. Trzebuckowski, 85 Ohio St.3d 524, 526 (1999).
R.C. 2951.041 governs intervention in lieu of conviction and provides that a trial court "may accept, prior to the entry of a guilty plea, the [defendant's] request for intervention in lieu of conviction" if certain statutory conditions apply. (Emphasis added.) R.C. 2951.041(A)(1). Much like R.C. 2929.20, the statute authorizing judicial release, R.C. 2951.041 is permissive in nature and confers substantial discretion to the trial court to grant a defendant's request without providing for appellate review. State v. Dempsey, 8th Dist. Cuyahoga No. 82154, 2003-Ohio-2579, ¶ 9, citing Coffman at 127-128. Intervention in lieu of conviction is therefore not a right provided to defendants. Id. (noting that intervention in lieu of conviction is a special opportunity provided to select defendants). As such, we conclude that the trial court's imposition of a restitution order as part of Mr. Bellman's intervention plan does not affect a substantial right. Id.; accord Rone v. State, 11th Dist. Ashtabula No. 2005-A-0075, 2006-Ohio-1268, ¶ 5, citing Coffman at 127-128. The trial court's
ordered intervention plan is therefore not a final, appealable order under R.C. 2505.02(B)(2).Bellman at ¶ 8-10.
{¶ 14} The Bellman court also found that the restitution order did not satisfy the definition of a provisional remedy:
Lastly, as used in R.C. 2505.02(B)(4), a provisional remedy is defined as:
a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code.
R.C. 2505.02(A)(3). Although ancillary is not defined by statute, the Supreme Court of Ohio has defined an ancillary proceeding as "one that is attendant upon or aids another proceeding." (Internal quotations and citations omitted.) Community First Bank & Trust v. Dafoe, 108 Ohio St.3d 472, 2006-Ohio-1503, ¶ 24. Given this definition, we conclude that intervention in lieu of conviction is not an ancillary proceeding, as it does not aid or further the principal proceeding. See id. at ¶ 31. Unlike a proceeding for a preliminary injunction, which R.C. 2505.02(B)(4) explicitly lists as an ancillary proceeding, intervention in lieu of conviction is not "a separate matter from the trial on the
merits" or "a proceeding with its own life." Id. at ¶ 30. Therefore, we determine that the trial court's ordered intervention plan is not a final, appealable order under R.C. 2505.02(B)(4).Bellman at ¶ 11.
{¶ 15} In this case, Slack has appealed the September 11 Decision granting her motion for ILC and (among other things) ordering her to pay restitution as a condition thereof. She pled guilty, the trial court "with[held] an adjudication of guilt and order[ed] that all criminal proceedings be stayed." September 11 Decision. Thus, because there has been no conviction and sentence, or dismissal, the criminal case is not yet complete. See R.C. 2951.041(E) and (F). We conclude that the September 11, 2020 Decision and Order of Intervention in Lieu of Conviction is not a final appealable order under the traditional standard for final entries in criminal cases. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-4562, 35 N.E.3d 493; R.C. 2505.02(B)(1).
{¶ 16} We also hold, consistent with the authorities discussed above, that the September 11 Decision does not affect a substantial right and therefore does not satisfy R.C. 2505.02(B)(2). While an argument could be made that ILC proceedings are, in fact, ancillary to the stayed criminal proceedings and therefore constitute a provisional remedy, Slack does not articulate any such argument or provide any support for it, or point to any other basis on which to consider the September 11 Decision final. Without such argument, we follow the weight of authority and find that we lack jurisdiction to review it in this case.
{¶ 17} The State's motion to dismiss is SUSTAINED. Slack's motion to correct the record is OVERRULED as moot. This matter, Montgomery Appellate Case No. 28921, is DISMISSED.
{¶ 18} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the Montgomery County Court of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. Costs taxed pursuant to App.R. 24.
SO ORDERED.
/s/_________
MICHAEL L. TUCKER, Presiding Judge
/s/_________
MICHAEL T. HALL, Judge
/s/_________
JEFFREY M. WELBAUM, Judge Copies to: Travis Kane
130 W. Second Street, Suite 460
Dayton, Ohio 45402
Attorney for Appellant Andrew French
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Attorney for Appellee Hon. Dennis J. Adkins
Montgomery County Common Pleas Court
41 N. Perry Street
P.O. Box 972
Dayton, Ohio 45422 CA3/KY