[Cite as State v. Weaver, 2015-Ohio-3610.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 26460 Plaintiff-Appellee : : Trial Court Case No. 13-CR-1415 v. : : (Criminal Appeal from CURTIS W. WEAVER : Common Pleas Court) : Defendant-Appellant : : :
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OPINION
Rendered on the 4th day of September, 2015.
MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 000085249, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
CANDI S. RAMBO, Atty. Reg. No. 0010324, Post Office Box 66, Springboro, Ohio 45066 Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Curtis Weaver, defendant-appellant, appeals from his conviction and -2- sentence for Theft, a felony of the fifth degree. Weaver contends that the trial court erred
by denying his request to be returned to a diversion program he was on, because the trial
court’s factual finding that he violated the terms of his diversion agreement is against the
manifest weight of the evidence. He also contends that his trial counsel provided
ineffective assistance by failing to advise him regarding his ability to request intervention
in lieu of conviction.
{¶ 2} We conclude that the trial court did not err in finding that Weaver was not
entitled to enforce the terms of the diversion agreement, and that Weaver did not
demonstrate that he was prejudiced by his counsel’s failure to request intervention in lieu
of conviction. Therefore, the judgment of the trial court will be Affirmed.
I. Course of Proceedings
{¶ 3} In 2013, Weaver was charged with one count of Theft, a felony of the fifth
degree, but the prosecution was suspended based on a “diversion division contractual
agreement” entered into by Weaver and the Montgomery County Prosecutor. In the
written contract, Weaver agreed to perform specific conditions, including:
1. I will refrain from any further criminal activity during my supervision
period and notify my Diversion Officer the next business day if I have
been arrested, questioned or charged with a new offense by any law
enforcement officer. I will further notify my Diversion Officer if I am
named as a defendant, victim or a witness in a criminal or civil case.
2. I will provide my Diversion Officer with complete and truthful information
at all times. If requested I will undergo a polygraph examination. I must -3- pass to be continued on Diversion.
3. I will keep all of my scheduled appointments and telephone contacts as
instructed by my Diversion Officer.
4. I will testify truthfully against any co-defendant(s) in my case if requested
to do so.
5. I will submit to urinalysis testing if requested by my Diversion Officer. If
the test detects any illegal substances, I may be terminated from the
Diversion Program unsuccessfully.
6. I agree to pay a non-refundable $150.00 fee for supervision services to
Montgomery County Prosecutor’s Diversion Program at the time of my
acceptance. If my Officer permits me to pay the service fee in
installments, I will abide by the payment schedule that is established.
7. I agree to repay the victim the total sum of $ To be Determined, as listed
in the attached restitution section of this Agreement.
8. I will satisfactorily perform forty (40) hours of community service work at
a non-profit organization within the first six (6) months of supervision. I
understand that all work performed will be performed at my own risk. I
agree that the Montgomery County Prosecutor’s Office, the Board of
County Commissioners of Montgomery County and their employees will
have no liability to me, my spouse or my children or my successors,
heirs and assigns for any injuries I may sustain in the performance of
this task.
*** -4- {¶ 4} The contract contains six more performance obligations, followed by a
statement of the Prosecutor’s obligations under the contract terms as follows:
The Prosecutor agrees to the following provided the above conditions have
been met by the Client:
1. The Prosecutor will suspend the prosecution of this case.
2. The Prosecutor will dismiss this case with prejudice upon successful
completion of the Diversion Program on Pre-indictment cases, which
means that the charge(s) is permanently dismissed. On Post-Indictment
cases, a Nolle Prosequi will be filed vacating the indictment.
{¶ 5} The final provision of the diversion contract required Weaver to agree that:
I understand if I violate any of the above conditions; provide false or
misleading information to my Diversion Officer or choose to voluntarily
withdraw my participation, my case will be terminated from the Diversion
Program. The original charge against me will either be forwarded to a
Montgomery County Grand Jury for consideration of an indictment and
possible criminal prosecution, or returned to the Court for full prosecution.
{¶ 6} Neither the contract, nor the statute, R.C. 2935.36, requires a verbal or
written notification to a defendant when the contract is terminated, or any notice of the
grounds for the termination. If not verbally advised, a defendant would learn of the
termination when he or she is notified of the indictment, or is served with a warrant on
indictment. The record reflects that an indictment was issued by the Grand Jury in
February 2014 to prosecute Weaver for the theft offense that was the basis of his
diversion contract. -5- {¶ 7} On August 12, 2014, Weaver filed a motion to return to diversion. The trial
court conducted an evidentiary hearing on the motion on September 10, 2014. At the
hearing, the trial court required Weaver to meet a burden of proof to establish by the
preponderance of the evidence that the State abused its discretion in terminating Weaver
from diversion. The State presented the testimony of the director of the diversion
division and the diversion officer who supervised Weaver during his participation in the
diversion program. The diversion officer testified that he only had contact from Weaver
twice; first, Weaver sent a fax to verify his completion of 40 hours of community service,
and secondly, to ask when the diversion program would end. The diversion officer
stated that Weaver did not meet his obligation to perform the community service with a
non-profit organization, and Weaver did not notify him when he was accused of complicity
to commit shoplifting. For these two reasons, an unsuccessful diversion report was
prepared and submitted to the Diversion Director. The diversion officer made his
determination that the company where Weaver had volunteered was not a non-profit,
based on the letterhead of the document provided by Weaver, without making any other
inquiry or investigation. The diversion officer assumed that Weaver had committed the
shoplifting offense because he was placed in the diversion program in Warren County,
which he assumed required an admission of guilt. The diversion officer did not keep
records of any phone calls that Weaver might have made to him, and denied that Weaver
ever called to report the shoplifting charge. No attempt was made to contact Weaver to
inform him of his deficiencies. The diversion director confirmed that they do not keep
records of all phone calls received from participants in the program. When she received
the unsuccessful diversion report, she approved the termination, based on Weaver’s -6- most egregious violation – committing another offense. Thereafter, Weaver’s case was
forwarded to the grand jury.
{¶ 8} Weaver testified that he made numerous attempts to reach the diversion
officer the day after the shoplifting incident in Warren County, leaving voicemail
messages. Weaver no longer had the phone that he used to make the calls, so he was
unable to provide any documentation of the calls. Weaver testified that he continued to
call the diversion officer for days after the incident. When the officer finally accepted his
call, Weaver testified that the officer simply said, “I have nothing to say to you,” and hung
up. After Weaver submitted proof of community service, Weaver never had a
conversation with the diversion office about whether his community service obligation
was met. Weaver explained that the documentation he submitted was signed by Tim
Carnahan, who worked for a church and also for a profit-based business. Weaver
explained that Carnahan used the business letterhead to verify his community service
hours, which were actually performed for the church. Weaver explained that he helped
clean the church and its truck, and assisted at events for feeding the homeless. Weaver
testified that in connection with his charge of complicity to commit shoplifting, he did not
admit his guilt, in order to participate in the diversion program in Warren County. Weaver
also testified that he was not involved in the shoplifting incident in Warren County; he was
shopping in a different department when the shoplifting took place. This testimony is
contradicted by a police report that states Weaver was with the principal offender when
the items were removed from the shelf.
{¶ 9} On Sept. 12, 2014, the trial court issued an order denying the motion to
return Weaver to the diversion program, based on the findings made at the time of the -7- hearing. The trial court found that the State met its initial burden by establishing that the
reason for the diversion termination was Weaver’s involvement in another offense. The
trial court found that Weaver did not meet his burden of proving that the State abused its
discretion in terminating the diversion contract. The trial court specifically stated that it did
not find credible Weaver’s testimony that he did not participate in the theft offense in
Warren County.
{¶ 10} Weaver was subsequently convicted of Theft, and sentenced accordingly.
From his conviction and sentence, Weaver appeals.
II. Standard of Review
{¶ 11} As discussed below, we conclude that the enforcement or termination of a
contract for diversion is controlled by contract law. Ordinarily, the interpretation of a
contract is a matter of law and is subject to de novo review.1 Saunders v. Mortensen, 101
Ohio St. 3d 86, 2004-Ohio-24, 801 N.E. 2d 452, ¶ 9. “[W]hen the facts presented in a case
are undisputed, whether they constitute a performance or a breach of the contract, is a
question of law for the court.” Marion v. Hoffman, 3d Dist. Marion No. 9-10-23,
2010-Ohio-4821, ¶ 21, citing Stonehenge Land Co. v. Beazer Homes Invests., L.L.C.,
177 Ohio App.3d 7, 19, 893 N.E.2d 855 (10th Dist. 2008), quoting Luntz v. Stern, 135
Ohio St. 225, 237, 20 N.E.2d 241 (1939).
{¶ 12} In the case before us, Weaver has alleged that the trial court’s finding that
he breached the agreement is against the manifest weight of the evidence. “When a
1 Where the construction of an ambiguous contract requires consideration of extrinsic evidence – e.g., the intent of the parties, custom and usage in the industry – the construction may become a mixed issue of law and fact. -8- conviction is challenged on appeal as being against the manifest weight of the evidence,
an appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility and determine whether, in resolving conflicts in
the evidence, the trier of fact ‘clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.’ ” State v. Hill, 2d
Dist. Montgomery No. 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio
St. 3d 380, 387, 678 N.E. 2d 717 (1983).
III. The Existence of Grounds for Termination of Diversion
Is Supported by the Record
{¶ 13} Weaver’s First Assignment of Error asserts:
THE TRIAL COURT COMMITTED PREJUDICAL ERROR IN
FINDING THAT THE APPELLANT VIOLATED A TERM OF HIS
DIVERSION BECAUSE APPELLEE/STATE OF OHIO FAILED TO
PRESENT SUBSTANTIAL EVIDENCE TO SUPPORT ITS CLAIM OF A
VIOLATION AND BECAUSE SUCH FINDING WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE
{¶ 14} Weaver argues that the burden of proof should rest on the State, to prove
by the preponderance of the evidence that he violated the terms of his diversion contract.
We agree that contract law must be applied to determine whether Weaver is entitled to
enforce the contract, or whether the State breached the contract by its early termination.
“Agreements between the prosecution and a suspect, an accused, or a criminal
defendant are reviewed using general principles of contract law.” Marion v. Hoffman, 3d -9- Dist. Marion No. 9-10-23, 2010-Ohio-4821, ¶ 17, citing State v. Small, 41 Ohio App.3d
252, 255, 535 N.E.2d 352 (8th Dist. 1987), and State v. Stanley, 7th Dist. Mahoning No.
99-CA-55, 2002-Ohio-3007, at ¶ 50; see also State v. Bethel, 110 Ohio St. 3d 416,
2006-Ohio-4853, 854 N.E.2d 150, ¶ 50. When addressing the rights of the parties
arising out of plea agreements, it has been concluded that a court may enforce contract
remedies for rescission or specific performance of the terms of the agreement. Santobello
v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed. 2d 427 (1971); State v. Burks, 10th
Dist. Franklin No. 04AP-531, 2005-Ohio-1262, ¶¶ 18, 21; State v. Liskany, 196 Ohio
App.3d 609, 2011-Ohio-4456, 964 N.E. 2d 1073, ¶ 190 (2d Dist.). Under contract law,
the person who seeks to enforce performance of the agreement has the burden of
proving the elements of the claim. To seek specific enforcement based on a breach of
contract claim, the movant must prove 1) the existence of an unambiguous contract, and
its precise terms, 2) the movant’s performance of all material obligations under the
contract, 3) non-compliance by the opposing party, and 4) harm caused by the breach
that cannot be satisfied with any other legal or monetary remedy. Beidler v. Davis, 72
Ohio App. 27, 50 N.E.2d 613 (9th Dist.1943); Nilavar v. Osborn, 137 Ohio App.3d 469,
483, 738 N.E.2d 1271 (2d Dist.2000); Geiger v. Geiger, 2d Dist. Montgomery No. 13841,
1993 WL 476247 (Nov. 16, 1993), citing Gleason v. Gleason, 64 Ohio App. 3d 667, 582
N.E. 2d 657 (4th Dist.1991).
{¶ 15} In the case before us, Weaver moved to be returned to the diversion
program on the ground that he had complied with all of his obligations under the terms of
the diversion contract. Weaver was seeking specific enforcement of the contract, based
on his own compliance, and the State’s non-compliance with the contract terms. Upon -10- filing of the motion, the trial court must set the matter for an evidentiary hearing. State v.
Sneed, 2d Dist. Montgomery No. 8837, 1986 WL 714 (Jan. 8, 1986). Unless barred by the
diversion contract, the State was free to seek an indictment. At the hearing, the burden
of proof was on Weaver, the movant seeking to enforce the terms of the contract, to prove
all the elements necessary to obtain specific enforcement of the contract. State v. Pocius,
11th Dist. Lake No. 92-L-028, 1992 WL 366872 (Dec. 11, 1992). To meet his burden of
proof, it was Weaver’s responsibility, at the evidentiary hearing, to prove by the
preponderance of the evidence,2 that he complied with all provisions of the diversion
contract, and that no grounds existed for the State’s termination of that contract. State v.
Pickens, 109 Ohio App.3d 147, 671 N.E. 2d 1116 (2d Dist. 1996). The evidence in this
record permits the trial court to find, as it did, that Weaver did not comply with all contract
terms.
{¶ 16} The contract did not require the State to notify Weaver that the contract
was being terminated, or specify grounds for termination, before referring the matter to
the grand jury. It has been held that when an obligation under the terms of a pre-trial
agreement not to prosecute is not satisfied, the State is entitled to consider the contract
nullified. State v. Parris, 6th Dist. Ottawa No. OT-14-015, 2014-Ohio-4863, ¶ 14. The
statute allowing the State to establish discretionary diversion programs, R.C. 2935.36,
2 We note that the higher standard of clear and convincing proof of each element of a claim is generally but not always required when seeking equitable relief, such as specific enforcement or rescission. See discussion in Betts v. Betts, 3d Dist. Hancock No. 5-12-33, 2013-Ohio-1938, ¶¶ 12-14. However, we continue to follow our precedent in State v. Pickens, 109 Ohio App.3d 147, 671 N.E. 2d 1116 (2d Dist. 1996), that specific performance may be ordered when the movant establishes, by the preponderance of the evidence, that a State official has failed to keep its bond or promise, made in his public capacity “as a pledge of the public faith,” such that specific performance is the only possible remedy. See State v. Parris, infra. -11- does not require the State to provide any notification of termination of the contract.
Therefore, we conclude that the lack of notice did not establish that the State breached its
obligations under the contract, or abused its discretion in terminating the contract.
{¶ 17} Weaver contends that he was surprised, at the hearing on his motion, by
the State’s claims that he had failed to perform his obligations under the contract. But he
sought no relief in the trial court, such as a continuance of the hearing to allow him to
rebut the State’s claims. He has therefore failed to preserve the surprise issue for
appellate review.
{¶ 18} Contradictory evidence was presented regarding Weaver’s involvement in
a theft offense in Warren County and whether Weaver timely contacted his diversion
officer after he was cited for complicity to commit theft. The trial court did not find
Weaver’s version of the events credible. Weaver did not present any testimony from the
diversion officer in Warren County, or submit any documentary evidence to support his
alleged phone calls to his Montgomery County diversion officer. “Because the fact finder
has the opportunity to see and hear the witnesses, substantial deference must be
extended to its determinations of credibility.” State v. Ayers, 2d Dist. Montgomery No.
25563, 2013-Ohio-5337, ¶ 28. The “rationale of giving deference to the findings of the trial
court rests with the knowledge that the trial judge is best able to view the witnesses and
observe their demeanor, gestures and voice inflections, and use these observations in
weighing the credibility of the proffered testimony.” In re S.A., 2d Dist. Montgomery Nos.
25994 & 26001, 2014-Ohio-3063, ¶ 17, citing Seasons Coal Co., Inc. v. Cleveland, 10
Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); In re J.Y., 2d Dist. Miami No. 07-CA-35,
2008-Ohio-3485, ¶ 33. Based on the diversion officer’s testimony, which the trial court -12- found more credible, the record does support a finding that Weaver violated the terms of
the diversion contract by failing to timely notify his diversion officer that he had been
arrested, questioned or charged with a new offense by law enforcement in Warren
County.
{¶ 19} Weaver also failed to sufficiently rebut the State’s evidence that Weaver did
not complete his obligation to perform 40 hours of community service for a non-profit
within the first six months of the diversion program. Although Weaver testified that the
work was performed for a church, Weaver did not present any corroborating testimony to
verify when and for whom the volunteer work was performed. We conclude that the trial
court could, on the evidence before it, find that Weaver did not meet his burden of proof to
establish that the diversion contract should be reinstated. Weaver’s First Assignment of
Error is overruled.
IV. No Prejudice Was Shown by Defense Counsel’s Failure to
Request Intervention in Lieu of Conviction
{¶ 20} Weaver’s Second Assignment of Error asserts:
APPELLANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE
OF COUNSEL.
{¶ 21} Weaver argues that his trial counsel was deficient because he failed to
counsel Weaver regarding his option to file a motion for intervention in lieu of conviction.
To prevail on a claim for ineffective assistance of counsel, Weaver must not only show
that his counsel's performance was deficient, but that a reasonable probability exists that,
but for his counsel's omissions, the outcome would have been different. State v. Jones, -13- 1st Dist. Hamilton No.C-130359, 2014-Ohio-3110, ¶ 27, citing Strickland v. Washington,
466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.
{¶ 22} Granting an offender’s request for “Intervention in Lieu of Conviction” is
discretionary, but the trial court must first find that the offender meets the ten statutory
requirements set forth in R.C. 2951.041 (B)(1) through (10). In the case before us,
Weaver has not established that he met all of the statutory requirements, so even if his
trial counsel had requested intervention in lieu of conviction, there is nothing in this record
to demonstrate the existence of a reasonable probability that the outcome would have
been different. Accordingly, Weaver’s Second Assignment of Error is overruled.
V. Conclusion
{¶ 23} Both of Weaver’s assignments of error having been overruled, the
judgment of the trial court is Affirmed.
DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck, Jr. Dylan Smearcheck Candi Rambo Hon. Michael Tucker