Ohio Criminal Appeals Lawyer Blog

Elsewhere in this blog I have mentioned how the "law" does not always comport with common sense (sometimes, common sense would be what non-lawyers would think of a situation). For example, it is hard to imagine that the children who are supposed to be financially supported by both parents are not "victims" of the non-custodial parent who fails to meet their support obligations. Instead, the law says, the "victim" is the Child Support Enforcement Agency (non-lawyers would say "give me a break") and the custodial parent the CSEA is supposed to hand the money to (minus some).

Who the victim is in a felony non-support of dependents case was at issue in State v. Sorrell, 2010-Ohio-1618, because Sorrell sought "ILC" or intervention in lieu of conviction. But ILC is not available to defendants whose victims were under thirteen at the time of the offense, pursuant to R.C. 2951.041(B)(7), and Sorrell's application for ILC was denied because a couple of the kids he was not supporting were under thirteen as he racked up almost 30k in arrears.

Not to worry Mr. Sorrell, because your kids are not your "victims" under Ohio law so your denial of ILC is reversed and the case is remanded "for further proceedings consistent with [the] opinion" as you can read by clicking here. The "victims," the CSEA and the mom, were both above thirteen and so Mr. Sorrell could still qualify for ILC on remand.

Bottom line? Don't give up on winning your appeal just because common sense is against you. The law may be on your side.

R.C. 2951.041(A)(1) gives "offenders" the possibility of intervention in lieu of conviction, but it also gives full authority to the trial judge to deny that possibility from any and all offenders. This was the issue in State v. Rice, 2009-Ohio-162.

Rice appeared to be a good candidate for ILC, but the trial judge denied Rice's request without a hearing. And when a request for ILC is denied without a hearing, according to State v. Rice, nothing can be done about it.  In a 2-1 decision, Ohio's Second District Court of Appeals found that there was no plain error even if the trial judge abused her discretion in denying ILC without a hearing.

At paragraph 18, the majority explained:

"It is unfortunate that the General Assembly crafted R.C. 2941.041 as it did.  That section creates a substantive right of relief, but permits the court to deny the right by overruling the defendant's procedural request for a hearing.  If that allows courts disposed against the state's policy favoring [ILC] to undermine that policy by arbitrarily denying the hearing, then the General Assembly should remove that impediment against its policy from R.C. 2941.041."