[Cite as State v. Hogel, 2020-Ohio-4488.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28656 : v. : Trial Court Case No. 2019-CR-2377 : STEVEN JOSEPH HOGEL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 18th day of September, 2020.
MATHIAS H. HECK JR. by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
L. PATRICK MULLIGAN, Atty. Reg. No. 0016188, 28 North Wilkinson Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
HALL, J. -2-
{¶ 1} Steven Joseph Hogel appeals the trial court’s denial of his request for
intervention in lieu of conviction (ILC). Finding no error, we affirm.
I. Factual and Procedural Background
{¶ 2} On August 19, 2019, Hogel was indicted on 12 counts of deception to obtain
a dangerous drug, all fifth-degree felonies. Hogel filed a request for ILC under R.C.
2951.041. On December 13, 2019, the trial court held an evidentiary hearing on the
request. The only witness to testify was Hogel’s group therapy counselor. She testified
that Hogel used methamphetamine, cocaine, MDMA, Adderall, and alcohol. She said that
Hogel was in group-therapy treatment for six hours per week and individual counseling
one hour per month. The counselor also testified that Hogel’s drug addictions would have
been a leading factor to his being found in possession of drugs.
{¶ 3} The trial court denied Hogel’s request for ILC from the bench. It found that
Hogel was statutorily ineligible for ILC on three grounds: (1) he occupied a position of
trust as a pharmacist and he was obligated to prevent the offenses, (2) his position as a
pharmacist facilitated the offenses, and (3) ILC would demean the seriousness of his
offenses. Hogel later pleaded no contest to six of the counts in exchange for the dismissal
of the other six. The trial court sentenced him to community control sanctions for up to
five years and informed him that if he violated community control he could be sent to
prison for 12 months on each count, for a total of 72 months in prison.
{¶ 4} Hogel appeals the denial of his request for ILC.
II. Analysis
{¶ 5} Hogel assigns three errors to the trial court: -3-
1. THE TRIAL COURT ERRED IN CONCLUDING THAT THE
DEFENDANT HELD A POSITION OF TRUST AND DENYING THE
APPELLANT'S MOTION FOR INTERVENTION IN LIEU OF CONVICTION.
2. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT’S
POSITION FACILITATE OF OFFENSES [SIC] AND DENYING
APPELLANT’S MOTION FOR ILC.
3. THE TRIAL COURT ERRED IN FINDING THAT ILC WOULD DEMEAN
THE SERIOUSNESS OF THE OFFENSES.
{¶ 6} R.C. 2951.041 permits a court to grant an offender ILC. But for an offender
to be eligible for ILC, the trial court must find that all the requirements in R.C. 2951.041(B)
are met. State v. Hill, 2d Dist. Montgomery No. 26455, 2015-Ohio-3916, ¶ 9.
The first two ineligibility findings
{¶ 7} The trial court found that Hogel held a position of trust as a pharmacist and
his position as a pharmacist facilitated his offenses. The court concluded that these two
facts rendered him statutorily ineligible for ILC under the requirements in R.C.
2951.041(B)(1).
{¶ 8} Formerly, the requirements in R.C. 2951.041(B)(1) included that the offender
did not hold a position of trust (and the offense related to that position) and that the
offender’s position facilitated the offense. But those two requirements were removed as
bars to ILC on October 29, 2019, when the statute was amended. Given that Hogel’s ILC
hearing was held about a month-and-a-half after the amendments went into effect, it is
likely that the trial court and counsel were simply unaware that the ILC statute had been
amended. -4-
{¶ 9} The first and second assignments of error are sustained, but that does not
end the inquiry.
The third eligibility finding
{¶ 10} The trial court also concluded that Hogel was ineligible for ILC based on its
finding that ILC would demean the seriousness of his 12 offenses. See R.C.
2951.041(B)(6) (requiring that “intervention in lieu of conviction would not demean the
seriousness of the offense”). The court found that “the Defendant was a registered
pharmacist, in a profession of trust that requires him to only fill prescriptions pursuant to
the requirements, whether it’s of the pharmacy board, state statutes, and other
professional ethics, and he did not do so.” (ILC Tr. 17-18). The court had also found that
Hogel’s position as a pharmacist, a position of trust, facilitated the offenses.
{¶ 11} The parties dispute the applicable standard of review. Hogel says that our
review is de novo, citing our decision in State v. Hill, 2d Dist. Montgomery No. 26455,
2015-Ohio-3916, but the state says that the abuse-of-discretion standard applies. We
agree with the state. In our discussion of the review standard in Hill, we noted that we
have applied both standards to ILC eligibility determinations. Eligibility determinations that
“do not involve the exercise of the trial court’s judgment * * * are more appropriately
reviewed de novo.” Hill at ¶ 9 (for example, the determinations “whether the offender has
a prior conviction for a felony offense of violence or whether the charged offense has a
mandatory prison term” do not involve discretion and can be reviewed de novo). “Other
eligibility criteria,” we said, “like here where the issue is whether ILC would demean the
seriousness of the offense or reduce the likelihood of future criminal activity, require the
exercise of judgment by the trial court and we should defer to that judgment as long as -5-
the proper statutory criteria are applied.” Id. 1 Accordingly, we apply the abuse-of-
discretion standard to the court’s eligibility determination at issue here.
{¶ 12} Given the facts in this case, we cannot say that the trial court abused its
discretion by finding that ILC would demean the seriousness of Hogel’s offenses. We
agree with the rationale used by the Tenth District to reach the same conclusion in State
v. Wiley, 10th Dist. Franklin Nos. 03AP-362, 03AP-363, 2003-Ohio-6. In that case, the
defendant was indicted on ten counts of theft of drugs for stealing medication from the
nursing home where she worked as a licensed health-care professional. The trial court
denied the defendant’s request for ILC based on its finding that it would demean the
seriousness of the ten thefts, which were partly facilitated by her professional license and
the position of trust she held at the nursing home. The appellate court found no abuse of
discretion and agreed that, “[g]iven the trust position appellant held as a nurse in our
society and the access to drugs, intervention in lieu of conviction would demean the
seriousness of theft of drugs from the employer.” Id. at ¶ 9.
{¶ 13} Because an applicant for ILC must meet each one of the statutory criteria
to be eligible, and the court determined intervention in lieu of conviction would demean
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[Cite as State v. Hogel, 2020-Ohio-4488.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28656 : v. : Trial Court Case No. 2019-CR-2377 : STEVEN JOSEPH HOGEL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the 18th day of September, 2020.
MATHIAS H. HECK JR. by JAMIE J. RIZZO, Atty. Reg. No. 0099218, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
L. PATRICK MULLIGAN, Atty. Reg. No. 0016188, 28 North Wilkinson Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
.............
HALL, J. -2-
{¶ 1} Steven Joseph Hogel appeals the trial court’s denial of his request for
intervention in lieu of conviction (ILC). Finding no error, we affirm.
I. Factual and Procedural Background
{¶ 2} On August 19, 2019, Hogel was indicted on 12 counts of deception to obtain
a dangerous drug, all fifth-degree felonies. Hogel filed a request for ILC under R.C.
2951.041. On December 13, 2019, the trial court held an evidentiary hearing on the
request. The only witness to testify was Hogel’s group therapy counselor. She testified
that Hogel used methamphetamine, cocaine, MDMA, Adderall, and alcohol. She said that
Hogel was in group-therapy treatment for six hours per week and individual counseling
one hour per month. The counselor also testified that Hogel’s drug addictions would have
been a leading factor to his being found in possession of drugs.
{¶ 3} The trial court denied Hogel’s request for ILC from the bench. It found that
Hogel was statutorily ineligible for ILC on three grounds: (1) he occupied a position of
trust as a pharmacist and he was obligated to prevent the offenses, (2) his position as a
pharmacist facilitated the offenses, and (3) ILC would demean the seriousness of his
offenses. Hogel later pleaded no contest to six of the counts in exchange for the dismissal
of the other six. The trial court sentenced him to community control sanctions for up to
five years and informed him that if he violated community control he could be sent to
prison for 12 months on each count, for a total of 72 months in prison.
{¶ 4} Hogel appeals the denial of his request for ILC.
II. Analysis
{¶ 5} Hogel assigns three errors to the trial court: -3-
1. THE TRIAL COURT ERRED IN CONCLUDING THAT THE
DEFENDANT HELD A POSITION OF TRUST AND DENYING THE
APPELLANT'S MOTION FOR INTERVENTION IN LIEU OF CONVICTION.
2. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT’S
POSITION FACILITATE OF OFFENSES [SIC] AND DENYING
APPELLANT’S MOTION FOR ILC.
3. THE TRIAL COURT ERRED IN FINDING THAT ILC WOULD DEMEAN
THE SERIOUSNESS OF THE OFFENSES.
{¶ 6} R.C. 2951.041 permits a court to grant an offender ILC. But for an offender
to be eligible for ILC, the trial court must find that all the requirements in R.C. 2951.041(B)
are met. State v. Hill, 2d Dist. Montgomery No. 26455, 2015-Ohio-3916, ¶ 9.
The first two ineligibility findings
{¶ 7} The trial court found that Hogel held a position of trust as a pharmacist and
his position as a pharmacist facilitated his offenses. The court concluded that these two
facts rendered him statutorily ineligible for ILC under the requirements in R.C.
2951.041(B)(1).
{¶ 8} Formerly, the requirements in R.C. 2951.041(B)(1) included that the offender
did not hold a position of trust (and the offense related to that position) and that the
offender’s position facilitated the offense. But those two requirements were removed as
bars to ILC on October 29, 2019, when the statute was amended. Given that Hogel’s ILC
hearing was held about a month-and-a-half after the amendments went into effect, it is
likely that the trial court and counsel were simply unaware that the ILC statute had been
amended. -4-
{¶ 9} The first and second assignments of error are sustained, but that does not
end the inquiry.
The third eligibility finding
{¶ 10} The trial court also concluded that Hogel was ineligible for ILC based on its
finding that ILC would demean the seriousness of his 12 offenses. See R.C.
2951.041(B)(6) (requiring that “intervention in lieu of conviction would not demean the
seriousness of the offense”). The court found that “the Defendant was a registered
pharmacist, in a profession of trust that requires him to only fill prescriptions pursuant to
the requirements, whether it’s of the pharmacy board, state statutes, and other
professional ethics, and he did not do so.” (ILC Tr. 17-18). The court had also found that
Hogel’s position as a pharmacist, a position of trust, facilitated the offenses.
{¶ 11} The parties dispute the applicable standard of review. Hogel says that our
review is de novo, citing our decision in State v. Hill, 2d Dist. Montgomery No. 26455,
2015-Ohio-3916, but the state says that the abuse-of-discretion standard applies. We
agree with the state. In our discussion of the review standard in Hill, we noted that we
have applied both standards to ILC eligibility determinations. Eligibility determinations that
“do not involve the exercise of the trial court’s judgment * * * are more appropriately
reviewed de novo.” Hill at ¶ 9 (for example, the determinations “whether the offender has
a prior conviction for a felony offense of violence or whether the charged offense has a
mandatory prison term” do not involve discretion and can be reviewed de novo). “Other
eligibility criteria,” we said, “like here where the issue is whether ILC would demean the
seriousness of the offense or reduce the likelihood of future criminal activity, require the
exercise of judgment by the trial court and we should defer to that judgment as long as -5-
the proper statutory criteria are applied.” Id. 1 Accordingly, we apply the abuse-of-
discretion standard to the court’s eligibility determination at issue here.
{¶ 12} Given the facts in this case, we cannot say that the trial court abused its
discretion by finding that ILC would demean the seriousness of Hogel’s offenses. We
agree with the rationale used by the Tenth District to reach the same conclusion in State
v. Wiley, 10th Dist. Franklin Nos. 03AP-362, 03AP-363, 2003-Ohio-6. In that case, the
defendant was indicted on ten counts of theft of drugs for stealing medication from the
nursing home where she worked as a licensed health-care professional. The trial court
denied the defendant’s request for ILC based on its finding that it would demean the
seriousness of the ten thefts, which were partly facilitated by her professional license and
the position of trust she held at the nursing home. The appellate court found no abuse of
discretion and agreed that, “[g]iven the trust position appellant held as a nurse in our
society and the access to drugs, intervention in lieu of conviction would demean the
seriousness of theft of drugs from the employer.” Id. at ¶ 9.
{¶ 13} Because an applicant for ILC must meet each one of the statutory criteria
to be eligible, and the court determined intervention in lieu of conviction would demean
the seriousness of the offenses, Hogel was not eligible for ILC. The third assignment of
error is overruled.
III. Conclusion
1 It is true that in Hill we applied the de novo standard to the issue of whether ILC would demean the seriousness of the offense. But we did so only to give the appellant the benefit of any doubt and to show that if de novo review led to the same conclusion, then the trial court’s determination could not have been an abuse of discretion. In other words, in that case, the result would have been the same no matter which standard applied. -6-
{¶ 14} Given that Hogel was statutorily ineligible for ILC, the trial court’s judgment
is affirmed.
WELBAUM, J., concurs.
FROELICH, J., dissents:
{¶ 15} The legislature removed the statutory ineligibility criteria for ILC that the
offender held “a position of trust” and that the “position facilitated the offense”; the
remaining ground relied on by the trial court was that granting ILC would demean the
seriousness of the offense. Here, the court concluded that “to grant intervention in lieu of
conviction, would demean the seriousness of the offenses. Again, the defendant was
registered pharmacist, in a profession of trust that requires him only to fill prescriptions
pursuant to the requirements, whether it’s of the pharmacy board, state statutes, and
other professional ethics, and he did not do so. And so under these circumstances, I’m
going to overrule the motion for intervention in lieu of conviction.” (Tr. 17-18.)
{¶ 16} But that conclusion was specifically based on the two factors which the
legislature removed. I do not find it is the plain wording or the intent of the current statute
to exclude certain grounds and then permit statutory ineligibility based on what, in the
circumstances of this case, appears to be a conclusion based on those removed criteria.
{¶ 17} I would reverse the finding that Hogel was not eligible for ILC and remand
for a new hearing as to what, if anything, would demean the seriousness of the offenses
other than that Hogel held “a position of trust” which “facilitated the offense.” -7-
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Mathias H. Heck, Jr. Jamie J. Rizzo L. Patrick Mulligan Hon. Mary Katherine Huffman