State v. Lewis

2017 Ohio 8604

Opinion

[Cite as State v. Lewis, 2017-Ohio-8604.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 2016-CA-29 : v. : T.C. NO. 16-CR-170 : ERIN L.N. LEWIS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 17th day of November, 2017.

KEVIN TALEBI, Atty. Reg. No. 0069198, Prosecuting Attorney, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 315 S. Monument Avenue, Hamilton, Ohio 45011 Attorney for Defendant-Appellant

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DONOVAN, J.

{¶ 1} On June 2, 2016, defendant Erin N. Lewis was indicted on charges of

Possession of Marijuana, Possession of Cocaine, and Illegal Use of Drug Paraphernalia. -2-

On July 20, 2016, Lewis filed a motion for ILC. On August 30, 2016, the trial court

accepted Lewis’ guilty plea to Count One, Possession of Marijuana, a minor

misdemeanor, in violation of R.C. 2925.11 (A)(C)(3)(a); Count Two, Possession of

Cocaine, a fifth degree felony, in violation of R.C. 2925.11(A)(C)(4)(a); and Count Three,

Illegal Use or Possession of Drug Paraphernalia, a fourth degree misdemeanor, in

violation of R.C. 2925.14 (C)(1)(F)(1). The trial court ordered an assessment report, which

concluded that Lewis had violated bond by using illegal controlled substances, albeit,

Lewis was eligible for ILC. At the Disposition on September 29, 2016, the trial court

granted ILC, and imposed two years of supervision. Lewis appeals from this decision.

{¶ 2} Lewis’ appellate counsel submitted a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that no arguably meritorious

issues exist for appeal. Counsel set forth three possible assignments of error, (1) whether

the trial court properly advised Lewis of her waiver of rights pursuant to Crim.R. 11, (2)

whether the trial court complied with the requirements of R.C. 2951.041(D) in imposing

the plan for Intervention in Lieu of Conviction, and (3) whether any conditions of the plan

for Intervention in Lieu of Conviction were contrary to law, including payment of court

costs and court-appointed counsel fees. By entry, we informed Lewis that her attorney

had filed an Anders brief on her behalf and granted 60 days from that date to file a pro se

brief. No pro se brief has been filed.

{¶ 3} We do not need to conduct an independent review of the record pursuant to

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), as we conclude

that the order granting ILC is not a final appealable order.

{¶ 4} ILC allows the trial court to stay criminal proceedings and order an offender -3-

to complete a rehabilitation program if the court has reason to believe that drug or alcohol

use, mental illness, or an intellectual disability was a factor leading to the commission of

a crime. R.C. 2951.041 (A). When ILC is imposed, “[t]he court shall place the offender

under the general control and supervision of the county probation department or adult

parole authority….as if the offender was subject to a community control sanction.” R.C.

2951.041 (D).

{¶ 5} At the dispositional hearing, the trial court found, pursuant to the assessment

report, that Lewis had violated the conditions of her bond by using illegal controlled

substances on August 13, 2016 and August 20, 2016. Nevertheless, the trial court

granted ILC for a period of two years, with the conditions that Lewis successfully

completes substance abuse and alcohol dependency counseling arranged by the Adult

Parole Authority, as well as a requirement to pay court costs and court appointed legal

fees.

{¶ 6} On September 15, 2017, we issued a show cause order, and Lewis has not

responded. We conclude that the state filed a response on October 12, 2017

acknowledging ILC has been granted. The court’s order of September 29, 2016 is not a

final appealable order. See generally State v. Dempsey, 8th Dist. Cuyahoga No. 82154,

2003-Ohio-2579, ¶ 9; State v. Bellman, 9th Dist. Lorain No. 15CA010525, 2015-Ohio-

2303, ¶ 10.

{¶ 7} Accordingly, the matter is dismissed for lack of a final appealable order.

HALL, P.J. and TUCKER, J., concur. -4-

Copies mailed to:

Kevin Talebi Scott N. Blauvelt Erin L.N. Lewis Hon. Nick A. Selvaggio