COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73280 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION BOBBY SMITH : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 13, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-348891. JUDGMENT: VACATED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Carol M. Skutnik, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: John P. Parker, Esq. The Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103 -2- TIMOTHY E. McMONAGLE, J.: Defendant-appellant Bobby Smith ( appellant ) appeals the decision of the Cuyahoga County Court of Common Pleas wherein the court denied his request for treatment in lieu of conviction brought pursuant to R.C. 2951.041. Finding that the trial court abused its discretion when it failed to consider the request of appellant not for reasons included in the statutory mandate but because of its philosophical preferences, we reverse the denial of appellant's request for treatment in lieu of conviction; vacate his subsequent conviction and sentence; and, remand this matter for judicial consideration of appellant's application for treatment in lieu of conviction according to factors contained within the legislative charge of the statute. The facts giving rise to this appeal are as follows. Appellant was indicted on March 20, 1997 for possession of less than one gram of crack cocaine in violation of R.C. 2925.11, a felony of the fifth degree. On April 30, 1997, appellant requested the court to grant him treatment in lieu of conviction pursuant to R.C. 2951.041. The trial court referred appellant to the Court Psychiatric Clinic for an evaluation of his eligibility for treatment in lieu of conviction pursuant to the statutory requirements. The report of the Psychiatric Clinic diagnosed appellant as drug dependent with the current offense directly related to his drug dependence. The Psychiatric Clinic recommended substance abuse treatment for appellant with the opinion that the likelihood of future criminal behavior would be substantially -3- reduced. The report of the Probation Department revealed that on March 1, 1996, seven months prior to the current offense, appellant was convicted of Attempted Drug Abuse and Physical Control while under the Influence (a lesser included offense of DUI), both misdemeanors. The matter came to be heard on August 19, 1997. The trial court found appellant eligible for treatment in lieu of conviction pursuant to the statute, but the court denied appellant's application for treatment. Appellant, upon denial of his request, withdrew his plea of not guilty and pled no contest to the charge against him. The court found appellant guilty of Possession of Drugs and sentenced him to a six-month term of incarceration at the Lorain Correctional Institution. The court suspended the sentence and ordered appellant to serve four years of Community Controlled Sanctions. Appellant timely appeals and advances a single assignment of error for our review. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT TREATMENT IN LIEU OF CONVICTION WHEN THE COURT DENIED THE REQUEST BASED ON ITS BELIEF THAT THE STATUTE IS DISCRIMINATORY, SHOULD ONLY BE AVAILABLE TO FIRST OFFENDERS, IS BASED ON A FAULTY PREMISE, DEPRIVES THE APPELLANT THE OPPORTUNITY TO HIT ROCK BOTTOM AND SHOULD ONLY BE USED IN CASES INVOLVING PRESCRIPTION DRUGS. Appellant complains that the trial court abused its discretion when it denied his application for treatment in lieu of conviction. Specifically, appellant contends that the trial court abused its discretion when it denied him, an eligible offender, treatment in lieu of conviction on the basis that the court finds the statute, -4- R.C. 2951.041: to be discriminatory; should only be available to first offenders; is based upon a faulty premise ; and has many defects. R.C. 2951.041(B) provides in pertinent part: *** Upon such a finding [of eligibility] and where the offender enters a plea of guilty or no contest, the court may stay all criminal proceedings and order the offender to a period of rehabilitation. (Emphasis added.) Assuming an offender meets all of the criteria for treatment in lieu of conviction, the granting of such relief is within the sole discretion of the trial court. State v. Gadd (1990), 66 Ohio App.3d 278,283; State v. Trent (June 30, 1993) Ottawa County App. No. 92-O.T.-049, unreported. The term abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151; State v. Busch (1996), 76 Ohio St.3d 613, 616. Without a showing of abuse of discretion, we will not disturb the decision of the trial court. Gadd, supra, 283. The Gadd court stated at 284-285: In creating the alternative of conditional probation, the General Assembly has adopted a policy that criminal offenders who meet the criteria of the statute must be considered for treatment. The statute reposes in the court broad discretion to determine in the case of any qualifying person whether such treatment is appropriate. In addressing that question the trial court must consider the offense, the applicant, the applicant's actual or prospective drug dependency and the treatment proposed. It may be that the court views such treatment appropriate only when those factors, taken together, present special circumstances, and such a view is not an -5- abuse of the broad discretion granted by the statute. (Emphasis added.) However, recognizing the discretion of a trial court is not unlimited, the Gadd court reversed the decision of the trial court holding that *** a trial court may not act outside the scope of its legislative charge. Gadd, supra, 285. With these legal principles in mind, we review the record of the trial court which reveals that the court found appellant eligible for treatment in lieu of conviction, stating: *** I do think he is eligible. I have not said he is not eligible. There is no question that he is eligible. The question is whether the Court should exercise its discretion to grant him treatment in lieu of conviction -- ***. The state in reliance on State v. Person (June 1, 1992), Montgomery App. No. 13036, unreported, which upheld the lower court's denial of the defendant's motion for treatment in lieu of conviction, argues that here, as in Person, the court apparently found appellant would not be a good candidate for treatment in lieu of conviction and in its discretion denied his request. We find the state's reliance on Person to be misplaced and find the circumstances of Person to be distinguishable from the matter sub judice. In Person,the court found that the report of the probation department concluded that Person was not a good candidate in view of his lengthy history of both drug and alcohol abuse and previous opportunities to receive treatment for his dependency. Person had been placed on probation and subjected to a court order that he -6- complete treatment for his dependency but, nevertheless, he continued to accumulate drug abuse arrests. In this case, the trial court did not find that treatment in lieu of conviction was not appropriate for appellant because of some special circumstance, nor did the court find that appellant was not a suitable candidate because of his drug history or a lack of attempt to receive treatment. In fact, the record reveals that, unlike the court in Person, the trial court gave no consideration to appellant's suitability for treatment in lieu of conviction. The record reflects that the court's stated reasons for denying appellant's request were the court's philosophical preferences regarding which offenders the statute should be applied to. Upon the denial of the application and the request of defense counsel to place its reasons on the record, the court stated: THE COURT: I have no hesitancy to explain what my reasons are: Let me state that I think the Statute, itself, is discriminatory because, strangely enough, the person who is an experimenter in drugs can't get treatment in lieu of conviction, but the person who is heavily addicted to drugs can. That strikes me as a quite discriminatory aspect of this. You made your own statement that the kind of people who come in, with good backgrounds, are good candidates for this, which I find to be another discriminatory aspect of it, but, I think, more significantly to me is that I think it should not be made available to people who have past drug convictions, who have previously been given an opportunity to deal with their drug problem, and didn't do it; it ought to be reserved for first- offenders. Finally, I would add, as I have said privately and philosophically, I think the Statute, -7- itself, is based on a faulty premise in that it is a good way to get people to get off their drug problem by giving them a carrot. The carrot is being present in Society without tampering with the Criminal Justice System; whereas, the carrot ought to be good judgment which says, I want to stay away from drugs because they're going to mess up my life. Now, to offer a drug carrot, it seems to me, is inconsistent with what we really know which is that people have to hit rock bottom, and it deprives them the opportunity to get to rock bottom. I think the Statute has many, many defects in it; and, therefore, I wouldn't exercise my discretion, and have never exercised my discretion in this kind of a case for treatment in lieu of conviction. As I have explained to you there are a few cases where I have done it. One that I pointed out to you is where people have become addicted to drugs through prescriptions from a physician, and it made sense to me there, but they are few ***. (Emphasis added.) From this record, it is clearly shown that the trial court based its denial of appellant's request for treatment in lieu of conviction upon its determination that the statute contains defects and not upon a determination as to whether such treatment would be appropriate for appellant. Criminal offenders who meet the criteria of the statute must be considered for treatment. Gadd, supra, 284. The court, however, found appellant met the criteria and was eligible for treatment in lieu of conviction, but refused to exercise his discretion to consider him for treatment. Thus, the record reveals that the trial court arbitrarily denied this appellant the opportunity afforded to him by the statute to be considered for treatment in lieu of conviction. -8- A trial court abuses it discretion when it acts arbitrarily. Adams, supra.Moreover, the trial court abuses its discretion when it denies an eligible defendant the right to consideration of treatment in lieu of conviction on a basis that is not one which is within the statutory scheme. Gadd, supra. Consequently, where the court based its decision on issues which were not given to it for determination and refused even to consider appellant an eligible criminal offender who met the criteria of the statute for treatment in lieu of conviction, we see this denial of appellant's request as so arbitrary as to constitute an abuse of the broad discretion with which the court is vested. We, therefore, find that it is an abuse of discretion for the court to refuse to use its discretion. Appellant's sole assignment of error is well taken. The decision of the trial court wherein it denied appellant's motion for treatment in lieu of conviction is reversed. Appellant's plea of no contest, his conviction and sentence are vacated. This matter is remanded to the trial court for proceedings consistent with this opinion. Judgment vacated and cause remanded. -9- This cause is vacated and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee 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. TIMOTHY E. McMONAGLE JUDGE KARPINSKI, P.J. and PATTON, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .