COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61062 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : RAYMOND MOORE : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 3, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-230959 JUDGMENT: REVERSED AND REMANDED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: L. CHRISTOPHER FREY Assistant County Prosecutor The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: IRL D. RUBIN Atty Reg. No. 0031816 220 Western Reserve Bldg. Cleveland, Ohio 44113 -2- SPELLACY, J.: The issue on appeal is whether the trial court properly found a previous order placing defendant-appellant Raymond Moore 1 in treatment in lieu of conviction (R.C. 2951.041) void. Finding that the record does not support the trial court's finding, we reverse and remand for a hearing to determine whether Moore has successfully completed treatment and is rehabilitated. I. On December 30, 1988, after referring Moore to the psychiatric clinic for evaluation, the original trial court judge found him eligible for treatment in lieu of conviction. Moore, after being advised of his constitutional rights, then entered a no contest plea. After considering the evidence, the trial court judge found Moore guilty of felonious assault (R.C. 2903.11), with two violence specifications, aggravated burglary (R.C. 2911.11) and possession of criminal tools (R.C. 2923.24). The trial court judge then placed Moore "on two years probation in treatment in lieu of conviction [, ordered him] to undergo such treatment and program as determined by [the] probation department [and] to remain in [the] county jail until [an] in-house treatment program [was] available." (Trial court's journal 1 Moore's assignment of error states "[t]he trial court erred in sua sponte modifying a previously imposed lawful sentence which had gone into execution." -3- entry, journalized December 30, 1988). The State did not appeal this decision. On December 18, 1990, Moore appeared before a successor trial court judge for a hearing to determine whether he had successfully completed treatment and had been rehabilitated. The trial court judge, referring to a February 28, 1989, probation report, found that Moore was alcohol dependent, and, noting that treatment in lieu of conviction only applies to drug dependency, not alcohol dependency, held that the order placing Moore in treatment in lieu of conviction was void. After sentencing Moore to concurrent terms of five to fifteen years for felonious assault, five to twenty-five years for aggravated burglary, and one and one-half years for possessing criminal tools, the trial court judge suspended execution of the sentences and placed him on probation for two years. II. 2 A trial court may correct a void sentencing order. State v. Dickens (1987), 41 Ohio App.3d 354, 355; Brook Park v. Necak (1986), 30 Ohio App.3d 118, 119-120; cf. State v. Beasley (1984), 14 Ohio St.3d 74, 75. A void sentencing order occurs when the trial court disregards statutory requirements or acts without authority. Dickens; Necak; Beasley. 2 The distinction between a sentencing order and the placement of an individual in treatment in lieu of conviction does not affect this case. -4- One of the requirements for eligibility for treatment in lieu of conviction is that the trial court must find that the defendant "is a drug dependent person or is in danger of becoming a drug dependent person." R.C. 2951.041. Alcohol is not considered a drug under R.C. 2951.041. State v. Ramey (1988), 39 Ohio App. 3d 169. We find that the record, which does not include the psychiatric evaluation, the transcript of the December 30, 1988, hearing at which Moore was found eligible for treatment in lieu of conviction, or the February 28, 1989, probation report referred to by the successor trial court judge does not support the conclusion that the original order placing Moore in treatment in lieu of conviction was void. Accordingly, Moore's assignment of error is well taken. Judgment reversed and remanded for a hearing to determine whether Moore has successfully completed treatment and is rehabilitated. -5- This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN F. CORRIGAN, P.J., AND HARPER, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .