author: Delaney, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Randall T. HUTCHISON, Defendant-Appellant
    No. 16-CA-108
    Court of Appeals of Ohio, Fifth District, Licking County.
    DATE OF JUDGMENT ENTRY: January 11, 2018
    WILLIAM C. HAYES, LICKING CO. PROSECUTOR, PAULA M. SAWYERS, 20 S. Second St., Fourth Floor, Newark, OH 43055, For Plaintiff-Appellee.
    MICHAEL R. DALSANTO, 33 West Main St., Suite 106, Newark, OH 43055, For Defendant-Appellant.
    JUDGES: Hon. Patricia A. Delaney, P.J., Hon. John W. Wise, J., Hon. Craig R. Baldwin, J.
   Delaney, P.J.

{¶ 1} Appellant Randall T. Hutchison appeals from the October 18, 2016 Judgment of Conviction of Sentence and May 29, 2016 Decision and Order Denying Defendant's Motion to Withdraw Guilty Pleas of the Licking County Court of Common Pleas. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} The following facts are adduced from appellee's statement at the change-of-plea and sentencing hearing on October 17, 2016. These facts are also contained in the "Memorandum Documenting Nature of Plea Agreement" signed by appellant, appellee, and defense trial counsel on October 17, 2016.

{¶ 3} This case arose on November 5, 2014 in the city of Newark. Law enforcement prepared to execute a search warrant at 58 ½ Union Street during an investigation of appellant's involvement in counterfeiting. Appellant left the residence and engaged in a confrontation with police, during which he discharged a firearm at Ptl. Jarrod Conley of the Newark Police Department. Ptl. Conley was struck in the arm and vest, causing serious physical harm.

{¶ 4} At the time of the shooting, Ptl. Conley was in uniform and had just exited a marked police car.

{¶ 5} Prior to this confrontation, appellant had stated "he would engage in a shootout with police if he ever faced being re-arrested." (Memorandum, 4).

{¶ 6} After shooting Ptl. Conley, appellant fled on foot, pursued by Det. Doug Bline, who was in plain clothes. Appellant became aware of Det. Bline's pursuit in the area of West Church Street; appellant "raised his firearm directly at Det. Bline in such a fashion as to manifest a substantial step toward shooting at him * * *." (Memorandum, 4). Det. Bline struck appellant with the vehicle he (Bline) was driving. Appellant's firearm was found at the scene.

{¶ 7} Appellant was alleged to have recklessly violated the terms of a protection order issued or consent agreement approved pursuant to R.C. 2919.26 or 3113.31 of the Revised Code, and/or a protection order issued pursuant to Section 2151.34, 2903.213, or 2903.214 of the Revised Code. These protection orders were issued in Licking County Common Pleas Court, Domestic Relations Division, Case No. 14-DR-1161 and Licking County Common Pleas Court, General Division, Case No. 09-CV-2135; both protection orders were in effect on November 5, 2014; and both protection orders prohibited appellant from possessing, using, carrying, or obtaining any deadly weapons, including a firearm.

{¶ 8} Appellant was in actual or constructive possession of, as a principal offender or in complicity with one or more others, "counterfeit" U.S. currency in the Union Street residence, in the vehicle he was driving before the confrontation with law enforcement, and/or in the personal effects removed from his person at the hospital. Additionally, appellant did with purpose to defraud or knowing that he was facilitating a fraud, did utter, or possess with purpose to utter, any writing that he knew to be forged.

{¶ 9} Appellant was in actual and/or constructive possession of, as a principal offender or in complicity with one or more others, items used to facilitate the counterfeiting of U.S. currency including but not limited to a printer/copier and copying paper to manufacture counterfeit bills; chemicals to "bleach" real U.S. currency; one or more vehicles to transport counterfeit bills and/or to transport items/equipment to aid in the counterfeiting process itself; and real U.S. currency from which to make copies or that can be bleached.

{¶ 10} Appellant acknowledged the facts presented, that those facts would have been presented to a jury, and that if presented to the jury would have been sufficient to sustain convictions as described infra. (T. 23).

{¶ 11} Appellant was charged by indictment as follows: Count I, felonious assault pursuant to R.C. 2903.11(A)(2), a felony of the first degree; Count II, felonious assault pursuant to R.C. 2903.11(A)(2), a felony of the first degree; Count III, improper handling of firearms in a motor vehicle pursuant to R.C. 2923.16(B), a felony of the fourth degree; Count IV, violation of a protection order pursuant to R.C. 2919.27(A)(1) and/or (2) and (B)(4), a felony of the third degree; County V, forgery pursuant to R.C. 2913.31(A)(3), a felony of the fifth degree; Count VI, possession of criminal tools pursuant to R.C. 2923.24(A), a felony of the fifth degree. Count I is accompanied by firearm specifications pursuant to R.C. 2941.1412 and R.C. 2941.145 ; Count II is accompanied by a firearm specification pursuant to R.C. 2941.145.

{¶ 12} Appellant entered pleas of not guilty.

{¶ 13} On July 10, 2015, appellant filed a motion for psychological evaluations, asserting he had "severe mental illness" and possible "intellectual/adaptive functioning impairments" affecting his ability to meaningfully assist in his defense. On July 14, 2015, the trial court ordered appellant to submit to a psychological examination pursuant to R.C. 2945.37(A).

{¶ 14} While the instant case was pending, in an unrelated matter, appellant's federal supervision was revoked and he was sentenced to a federal prison term of 24 months.

{¶ 15} On September 11, 2015, the trial court filed a Judgment Entry accepting a Netcare Report and adopting the finding that appellant was capable of understanding the nature and objective of the proceedings and assisting in his defense. Appellant was therefore competent to stand trial.

{¶ 16} On September 16, 2015, appellant filed a pro se memorandum requesting new trial counsel, which the trial court granted on September 18, 2015.

{¶ 17} Appellant moved for, and was granted, the services of a private investigator at public expense. Appellant also moved for, and was granted, the services of an expert crash investigator/reconstructionist.

{¶ 18} On May 16, 2016, the trial court filed a Judgment Entry indicating appellant requested a new trial at a status conference and the request was granted. The Office of the Ohio Public Defender was appointed to represent appellant.

{¶ 19} On October 18, 2016, appellant entered negotiated pleas of guilty to Count I, felonious assault of a police officer and the second accompanying firearm specification; Count III, improper handling of a firearm in a motor vehicle; Count IV, violation of a protection order; Count V, forgery; and Count VI, possession of criminal tools. Appellant entered an Alford plea to Count II, which was amended to attempted felonious assault pursuant to R.C. 2903.11(A)(1) and 2923.02, a felony of the third degree, and the accompanying firearm specification. The Entry of Guilty Pleas filed October 18, 2016, states the parties' agreement "[t]hat the parties will jointly recommend that on the charges in this case the Court impose a prison sentence not less than twelve (12) years, and no greater than twenty-four (24) years under the terms otherwise outlined in a simultaneously-presented 'Memorandum Documenting Nature of Plea Agreement.' "

{¶ 20} Also on October 18, 2016, the trial court journalized its Judgment of Conviction and Sentence indicating, e.g., appellant was sentenced to an aggregate prison term of 20 years. The term was ordered to be served consecutively to appellant's federal prison term.

{¶ 21} On October 31, 2016, appellant filed a pro se motion to withdraw his guilty plea, arguing e.g. he blacked out and had no memory of telling defense trial counsel he acquiesced to the negotiated pleas of guilty. Appellee responded with a memorandum and affidavit in opposition on November 3, 2016.

{¶ 22} Appellant filed second and third (separate) pro se motions to withdraw his guilty plea on November 10, 2016. Appellee responded with a supplemental memorandum in opposition on November 15, 2016.

{¶ 23} On November 17, 2016, appellee filed a "State's Submission of Proposed Judgment Entry Denying Defendant's Motions to Withdraw Guilty Plea."

{¶ 24} On November 29, 2016, the trial court entered a "Decision and Order Denying Defendant's Motions to Withdraw Guilty Pleas."

{¶ 25} Appellant then filed pro se motions to hold an evidentiary hearing, for preparation of transcripts at state's expense, and for appointment of counsel, all of which were overruled by the trial court.

{¶ 26} On December 16, 2016, however, the trial court filed a judgment entry noting the motions described above, concluding appellant "wish[ed] to pursue some sort of appeal in connection with either his conviction, or his Motion to Withdraw his Guilty Pleas." Therefore the trial court granted appellant's motion for appointment of counsel to represent appellant for purposes of appeal.

{¶ 27} On December 29, 2016, appellant filed notice of the instant appeal.

{¶ 28} Appellant now appeals from the October 18, 2016 Judgment of Conviction and Sentence and November 29, 2016 Decision and Order Denying Defendant's Motions to Withdraw Guilty Pleas.

{¶ 29} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶ 30} "I. HE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE APPELLANT A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA."

{¶ 31} "II. THE TRIAL COURT VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS WHEN IT FAILED TO COMPLY WITH CRIMINAL RULE 11, SPECIFICALLY BY NOT EXPLAINING TO THE DEFENDANT THAT A DEFENDANT WHO MAKES A GUILTY PLEA IS MAKING A COMPLETE ADMISSION OF GUILT."

{¶ 32} "III. THE APPELLANT DID NOT ENTER A KNOWING, INTELLIGENT, AND VOLUNTARY PLEA BECAUSE HIS COMMENTS ON THE RECORD CLEARLY DEMONSTRATE THAT HE DID NOT UNDERSTAND THE CHARGES."

ANALYSIS

I., II., III.

{¶ 33} Appellant's three assignments of error are related and will be considered together. Appellant argues that the trial court should have afforded him a hearing on his motions to withdraw his guilty pleas; that he did not understand his guilty pleas were a complete admission of guilt; and he didn't fully comprehend the charges he was facing. For each of these reasons, appellant alleges, the trial court erred in refusing to allow him to withdraw his guilty pleas. We disagree.

Post-Sentence Motions to Withdraw Guilty Pleas

{¶ 34} Appellant's motions to withdraw his guilty plea were made pursuant to Criminal Rule 32.1, stating: "A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea." The standard upon which the trial court is to review a request for a change of plea after sentence is whether there is a need to correct a manifest injustice. State v. Marafa , 5th Dist. Stark Nos. 2002CA00099, 2002CA00259, 2003-Ohio-257, 2003 WL 150093, ¶ 8.

{¶ 35} Our review of the trial court's decision under Crim.R. 32.1 is limited to a determination of whether the trial court abused its discretion. See State v. Caraballo , 17 Ohio St.3d 66, 477 N.E.2d 627 (1985). An appellate court may not substitute its judgment for that of the trial court when reviewing a matter pursuant to this standard. Berk v. Matthews , 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). Furthermore, under the manifest injustice standard, a post-sentence withdrawal motion is allowable only in extraordinary cases. State v. Aleshire , 5th Dist. Licking No. 09-CA-132, 2010-Ohio-2566, 2010 WL 2297917, ¶ 60, citing State v. Smith , 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The accused has the burden of showing a manifest injustice warranting the withdrawal of a guilty plea. Smith , supra, 49 Ohio St.2d 261, 361 N.E.2d 1324 at paragraph one of the syllabus.

Hearing Not Required

{¶ 36} Appellant first argues the trial court should have allowed a hearing because the facts alleged in his pro se motions, if accepted as true, would require the court to permit withdrawal of the guilty pleas. A trial court is not automatically required to hold a hearing on a post sentence motion to withdraw a plea of guilty. A hearing must only be held if the facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea. State v. Kent , 10th Dist. Franklin No. 03AP722, 2004-Ohio-2129, 2004 WL 886387, ¶ 8.

{¶ 37} A trial court's decision whether to hold a hearing on the motion is also subject to review for abuse of discretion. Smith , supra. The term "abuse of discretion" implies the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 38} Appellant argues his claims of manifest injustice require a hearing. Specifically, he asserts that he instructed his attorney that he did not want to enter guilty pleas when he entered the courtroom, but then blacked out for the remainder of the hearing due to his traumatic brain injury. We reject appellant's premise that a trial court must accept his claims as true without any consideration of credibility. In deciding a motion to withdraw a guilty plea, the trial court has the discretion to determine the "good faith, credibility and weight of the movant's assertions * * *." State v. Wilkey , 5th Dist. Muskingum No. CT2005-0050, 2006-Ohio-3276, 2006 WL 1745065, ¶ 21, citing Smith at paragraph two of the syllabus and State v. Caraballo , 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985). In this case, the only corroboration of appellant's claims are his own statements in the motions to withdraw the guilty pleas. Generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice. State v. Patterson , 5th Dist. Stark No. 2003CA00135, 2004-Ohio-1569, 2004 WL 615751, ¶ 20.

{¶ 39} In fact, appellant's claims of a blackout and debilitating illness are contradicted by the record. Appellant claims in his motions and on appeal that he was ill during the hearing, that he was medicated to the extent he didn't understand what was happening, and that the prosecutor and defense trial counsel threatened and coerced him into accepting the plea offer. During the hearing, appellant testified under oath that he understood what he was doing, he wasn't under the effects of any mind-altering substance, and no threats or promises had been made to induce him to plead guilty. (T. 7, 8).

{¶ 40} There was no evidence of appellant's alleged altered mental state at the hearing. In Caraballo , supra, the appellant argued that his state of mind was affected by emotional debilitation and drug abuse, therefore preventing his plea from being voluntary and knowledgeable; additionally, he was not capable of appreciating the consequences of his actions due to his habitual drug dependency and the trial court erred in disallowing him to withdraw the plea. In affirming the decision of the trial court, the Ohio Supreme Court noted:

While we recognize that a guilty plea must be knowing, intelligent and voluntary, appellant's own testimony established that he was not under the influence of any drug and that he understood the nature of the proceedings on the day in question. Further, we fail to see how the trial judge could have more thoroughly examined appellant's mental state relative to his plea. After complying with Crim.R. 11, the court again reviewed his mental awareness surrounding the plea at the hearing on this matter. We can, therefore, find no abuse of discretion in the trial court's action as appellant has not sustained his burden of proof required by Smith, supra.
State v. Caraballo , 17 Ohio St.3d 66, 67, 477 N.E.2d 627 (1985).

{¶ 41} In the instant case, appellant's claims are contradicted by the record. The trial court found the only evidence of appellant's traumatic brain injury was his own self-serving statement; nor does any evidence exist that any such injury impaired appellant's decision-making during the change-of-plea hearing. As appellee points out, appellant was in fact found to be competent to stand trial.

{¶ 42} If we were to accept appellant's argument, a hearing would be required upon every claim of manifest injustice and the trial court would have no discretion to weigh the credibility of the allegations. Instead, the Ohio Supreme Court has held a trial court may, in the sound exercise of its discretion, judge the credibility of the affidavits in determining whether to accept affidavits as true statements of fact. State v. Amstutz , 5th Dist. Stark No. 2000-CA-00047, 2001 WL 46324, *2, citing State v. Calhoun , 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).

{¶ 43} The party moving to withdraw the guilty plea must support the allegations contained in the motion with affidavits and/or the record. Id. In Amstutz , supra, 5th Dist. Stark No. 2000-CA-00047, 2001 WL 46324, at *2, citing State v. Jackson , 64 Ohio St.2d 107, 413 N.E.2d 819 (1980), we noted a defendant is not entitled to a hearing where he or she failed to provide evidentiary-quality materials raising sufficient operative facts which would entitle the defendant to the requested relief. Appellant was required to present evidence which met a minimum level of cogency to support his claims. Id. , citing State v. Cole , 2 Ohio St.3d 112, 115, 443 N.E.2d 169 (1982). A petitioner's self-serving affidavit does not meet the minimum level of cogency. State v. Kapper , 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983).

{¶ 44} We reject appellant's premise that the trial court must accept his assertions as true; if that were the case, every self-serving affidavit accompanying a motion to withdraw plea would require a hearing. When reviewing a post-sentence motion to withdraw a plea, a trial court may assess the credibility of a movant's assertions. See, State v. Allison , 4th Dist. Pickaway No. 06CA9, 2007-Ohio-789, 2007 WL 576111, ¶ 9, citing Smith, supra, at 264, 361 N.E.2d 1324 ; State v. Yost, 4th Dist. Meigs No. 03CA13, 2004-Ohio-4687, 2004 WL 1949367 ; State v. Boyd, 2nd Dist. Montgomery No. 18873, 2002 WL 360333 ; State v. Cross , 10th Dist. Franklin No. 03AP-1129, 2004-Ohio-7194, 2004 WL 3090242 [appellant's allegations in his Crim.R. 32.1 motions "are directly contradicted by the record, general and conclusory in substance, or, even if true, insufficient to necessitate an evidentiary hearing on his motion to withdraw his guilty plea."].

{¶ 45} The trial court did not abuse its discretion in failing to hold an evidentiary hearing on appellant's motions to withdraw his guilty pleas.

Trial Court Complied with Crim.R. 11

{¶ 46} Next, appellant asserts the trial court failed to advise him during the Crim.R. 11 colloquy that his guilty pleas were complete admissions of guilt. The effect of a guilty plea "is a complete admission of the defendant's guilt." See, Crim.R. 11(B)(1). The information that a guilty plea is a complete admission of guilt, along with the other information required by Crim.R. 11, ensures that defendants enter pleas with knowledge of rights that they would forgo and creates a record by which appellate courts can determine whether pleas are entered voluntarily. State v. Griggs , 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 11, citing State v. Nero , 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990) and State v. Ballard , 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). The right to be informed that a guilty plea is a complete admission of guilt is nonconstitutional and therefore is subject to review under a standard of substantial compliance. Id. at ¶ 12, citing Nero, 56 Ohio St.3d at 107, 564 N.E.2d 474.

{¶ 47} Crim.R. 11(C)(2)(a) states the trial court must determine "* * * that the defendant is making the plea voluntarily, with the understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing." The Rule requires guilty pleas to be made knowingly, intelligently and voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need only "substantially comply" with the rule when dealing with the non-constitutional elements of Crim.R. 11(C). State v. Dunham, 5th Dist. No.2011-CA-121, 2012-Ohio-2957, 2012 WL 2479542, ¶ 11 citing State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d 115 (1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). In State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, at ¶ 12, the Ohio Supreme Court noted the following test for determining substantial compliance with Crim.R. 11 :

{¶ 48} Though failure to adequately inform a defendant of his constitutional rights would invalidate a guilty plea under a presumption that it was entered involuntarily and unknowingly, failure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990) ]. The test for prejudice is 'whether the plea would have otherwise been made.' Id.

{¶ 49} Under the substantial-compliance standard, we review the totality of circumstances surrounding appellant's plea and determine whether he subjectively understood the effect of his plea. See, State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224 at ¶ 19-20 ; State v. Alexander, 5th Dist. Stark No. 2012CA00115, 2012-Ohio-4843, 2012 WL 4955291, appeal not allowed, 134 Ohio St.3d 1485, 2013-Ohio-902, 984 N.E.2d 29.

{¶ 50} Our review of the change-of-plea and sentencing hearing reveals the trial court advised appellant of his constitutional rights, the potential penalties for each offense, and the possibility of post-release control. The trial court also inquired as to the voluntariness of appellant's plea of guilty. In short, the trial court complied with Crim.R. 11. The record demonstrates the trial court had a meaningful dialogue with appellant, fully apprising him of the rights he was waiving. See, State v. Tillman, 6th Dist. Huron No. H-02-004, 2004-Ohio-1967, 2004 WL 835845, ¶ 20. The court engaged appellant in a personal inquiry as to whether he understood the plea agreement and its consequences. Appellant was represented throughout the hearing. Nothing in the record indicates that appellant was under the influence of any drug or other substance which would prohibit his understanding of the court's questions. The record indicates that he understood the terms of the agreement and entered an intelligent, knowing and voluntary plea. State v. Hendricks , 5th Dist. Muskingum No. CT2016-0010, 2017-Ohio-259, 2017 WL 334440, ¶ 35.

{¶ 51} Nor is there evidence in the record showing that if the court had advised appellant any differently appellant would not have pled guilty and instead would have insisted on going to trial. Thus we find no evidence appellant was prejudiced and he does not point to any such evidence. Hendricks, supra, 2017-Ohio-259, 2017 WL 334440 at ¶ 36.

{¶ 52} The record demonstrates the trial court discussed the charges with appellant. Specifically, the court informed appellant of the elements of the offenses and the possible penalties that could result from the convictions. Appellant informed the trial court that he understood the charges and the possible penalties.

{¶ 53} The record further demonstrates that the court notified appellant of the constitutional and non-constitutional rights encompassed by Crim.R. 11(C)(2), and the effect that a guilty plea would have on such rights. Again, appellant told the court that he understood the effect of his guilty pleas.

{¶ 54} Finally, appellant argues the record proves he did not understand the charges he faced because his statements at the hearing "asserted complete defenses to Count I and Count II * * *." Appellant argues that his unsworn statements at the hearing create a "complete defense" to the count of attempted felonious assault in Count II, indicating appellant did not fully understand the nature of the Alford plea on that count. Notwithstanding the trial court's compliance with the prerequisites of Crim.R. 11(C)(2), appellant argues that his Alford plea should be invalidated based upon this misunderstanding.

{¶ 55} An Alford plea is a plea of guilty with a contemporaneous protestation of innocence. North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. A court may accept an Alford plea if the following requirements are met:

Where the record affirmatively discloses that: (1) defendant's guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) counsel's advice was competent in light of the circumstances surrounding the indictment; (4) the plea was made with the understanding of the nature of the charges; and, (5) defendant was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty plea has been voluntarily and intelligently made.
State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971), paragraph one of the syllabus.

{¶ 56} Upon discussion with the trial court and his attorney, appellant notified the court that he would be pleading guilty by way of an Alford plea (T. 10). The trial court again discussed with appellant the specific effect of an Alford plea and inquired as to whether appellant was entering the Alford plea voluntarily and knowingly (T. 10). Appellant informed the trial court that he understood the effect of his plea and that it was being made voluntarily and knowingly (T. 11-12). Thus, any inference that appellant did not make his Alford plea voluntarily is not well taken.

{¶ 57} We disagree with appellant's characterizations of his unsworn statements at the hearing; the statements do not constitute a "complete defense" to the charge. His protestations that he "* * *didn't mean to shoot anybody * * * ;" "* * *it was a fast reaction* * *;" and "it just happened" do not constitute a complete defense to felonious assault. "[U]nder these circumstances a reasonable jury, properly instructed, could have concluded that defendant's actions were strongly corroborative of his intent to cause physical harm to the officers by means of his deadly weapon." State v. Green , 58 Ohio St.3d 239, 242, 569 N.E.2d 1038 (1991).

{¶ 58} The amended charge of attempted felonious assault was substantiated by the evidence. R.C. 2903.11(A)(1) states, "No person shall knowingly * * * cause serious physical harm to another." Defense trial counsel stated on the record that an argument can be made that pointing a gun at someone, in the absence of any other act evidencing intent to cause physical harm, is aggravated menacing (T. 35-36). However, defense trial counsel further acknowledged that he and his client discussed the fact that if the testimony at trial corroborated evidence contained in the discovery, a factfinder could find appellant guilty of attempted felonious assault (T. 37). Therefore, the risk of trial vs. a plea to a lesser charge was to appellant's benefit.

{¶ 59} The record before us therefore demonstrates the trial court complied with the statutory prerequisites of Crim.R. 11(C)(2), and appellant entered his Alford plea to the amended Count II both voluntarily and knowingly. The record further confirms that appellant's counsel was present at the time of the plea and that his counsel's advice was competent. Further, the record establishes appellant entered an Alford plea to a lesser charge to avoid exposure to another first-degree felony. As discussed supra, the record fails to demonstrate that appellant was coerced into entering his Alford plea. The trial court explained to appellant the possible charges and penalties associated with each charge. Appellant told the trial court that he understood the charges and the penalties. Thus, appellant's Alford plea was made with an understanding of the nature of the charges.

{¶ 60} The record before us confirms that appellant's Alford plea was made voluntarily and knowingly, and the prosecution presented a sufficient factual basis for an attempted felonious assault charge.

{¶ 61} We find the record indicates appellant answered the trial court's questions at the plea hearing correctly and appropriately, and specifically affirmed that he understood the nature of the charge against him. See State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 38 (noting that the "[d]efendant showed that he understood the proceedings by meaningfully responding to each of the trial court's questions"). Appellant affirmed at the plea hearing that he had fully discussed the case with counsel, and indicated no confusion regarding the proceedings.

{¶ 62} Accordingly, under the circumstances of the case sub judice, the trial court did not abuse its discretion in finding no manifest injustice which would warrant the extraordinary step of withdrawing appellant's guilty pleas. We therefore affirm the trial court's decision overruling appellant's motions to withdraw his guilty pleas.

{¶ 63} Appellant's three assignments of error are overruled.

CONCLUSION

{¶ 64} Appellant's three assignments of error are overruled and the judgment of the Licking County Court of Common Pleas is affirmed.

Wise, John, J. and Baldwin, J., concur.

      Appellee's statement of facts indicates appellant originally left the residence in a vehicle but ended up on foot as described infra.

      Appellee dismissed the first firearm specification in Count I.


source: Caselaw Access Project

author: Gwin, P.J. Hoffman, J., dissenting

license: Public Domain

text:
    Sherryl MCCOY, Plaintiff-Appellant v. WASABI HOUSE, LLC, et al., Defendants-Appellees
    No. 2017CA00098
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT ENTRY: January 16, 2018
    WILLIAM J. DAVIS, ARONSON, FINEMAN & DAVIS CO., 124 EAST FIFTH STREET, EAST LIVERPOOL, OH 43920, For Plaintiff-Appellant.
    CRAIG G. PELINI, NICOLE H. RICHARD, PELINI, CAMPBELL & WILLIAMS, LLC, 8040 CLEVELAND AVE. NW, STE. 400, NORTH CANTON, OH 44720, For Defendant-Appellee.
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, J.
   Gwin, P.J.

{¶ 1} Appellant appeals the May 17, 2017 judgment entry of the Stark County Court of Common Pleas granting appellee's motion for summary judgment.

Facts & Procedural History

{¶ 2} On September 20, 2016, appellant Sherryl McCoy filed a negligence complaint against appellee Wasabi House, LLC. Appellant alleged in her complaint that on October 17, 2014, at 5:45 p.m., while she was holding onto the handrail and walking on the ramp leading to the entrance doors, she tripped on an uneven area on the ramp covered by a rubber mat and sustained injuries. Appellee filed an answer on October 21, 2016. Appellee then filed a motion for summary judgment on April 11, 2017. Appellee alleged two doctrines barred appellant's negligence complaint: the open and obvious doctrine and the two-inch rule. Appellant filed a brief in opposition to appellee's motion for summary judgment and argued the two-inch rule did not apply and contended whether the condition was open and obvious was a jury question.

{¶ 3} In her deposition, appellant stated that, as a result of her fall on October 17, 2014, she sustained a right leg puncture wound and her right femur was shattered such that the doctor had to put in a rod, plate, and screws. Appellant lives in Pennsylvania and came to Canton earlier that day to celebrate an occasion with her family. Appellant had never been to Wasabi House before. When she arrived at Wasabi House, appellant parked in the lot to the left-hand side of the building as the restaurant faces the street. Appellant stated when she arrived at Wasabi on October 17, 2014, it was 5:45 p.m., it was still light out, there was no precipitation, she had no visibility problems, and the light was such that she could see where she was walking. Appellant testified her niece and nephew were ahead of her with their children. Appellant does not have any visual or vision issues.

{¶ 4} Appellant stated that as she began to go up the ramp, she could see it was a ramp, could see the condition of the ramp as she was walking, could see the ramp was going up to the landing, could see a black mat on the ramp, and knew the handrail ended at the top of the ramp. She was walking up the right-hand side of the ramp with her hand on the handrail. Appellant testified, "she saw nothing to make [her] think there was any reason I shouldn't step up." Appellant knew she was walking up a ramp, could see the condition of the ramp, and was able to look down and see where she was putting her foot. She stated as she was walking upward, it was obvious it was a ramp and obvious there was a runner on the ramp. Appellant identified Exhibit A as a picture of the ramp she was walking up and stated she could see the ramp, black runner, and black mat on the day in question. Appellant testified she made the conscious decision to use the ramp.

{¶ 5} Appellant stated as she was walking up the ramp, she could see the wood and rubber mat. Appellant testified the lead foot was her right foot, which went up onto the tile itself. Appellant believes her left toe hit something, causing her to fall, but when asked where her left toe hit, appellant stated, "I'm going to say I'm not positive." Appellant stated she was able to see the tile as she was placing her right foot on the tile and, as she was beginning to move her left foot forward, she was able to see the area directly in front of her. She knew she was going from the ramp to the tile. Appellant testified there was nothing except people ahead of her walking up the ramp, and the area where she fell was capable of observation within her field of vision.

{¶ 6} Appellant confirmed she had just walked over the same area with her right foot safely. When asked what was different about moving her left foot that was different from her right foot, appellant responded, "I don't know." Appellant testified that, at the time her fall occurred, her nephew holding an infant safely walked across the area, as did her niece and her sister. Appellant stated that one of the ambulance drivers told her this happened before at Wasabi, but appellant had no personal knowledge of any previous falls.

{¶ 7} Appellant stated her nephew returned to Wasabi after the accident and took photographs. As to the photographs taken by her nephew, appellant testified she believes the photographs taken by her nephew helped tell her what caused her to fall.

{¶ 8} On direct examination, appellant testified she could see there was a ramp in front of her, could see the runner from the bottom to the top, could see the black mat at the top, and none of these things looked hazardous to her. Appellant stated she could not see what was under the black mat and that she was not there when they peeled back the black mat. Appellant testified there was "nothing to distract her" as she was walking towards the door, and that she looked at the floor and entrance as she was going up the ramp.

{¶ 9} Appellant also attached her own affidavit to her response to the motion for summary judgment. In her affidavit, appellant averred there was nothing visible on the black mat that covered the end of the ramp and porch to cause her to trip and fall. She stated she had viewed the tiled porch and there appeared no obstructions before her. Appellant averred as she stepped off the end of the ramp and onto the porch with her right foot, the toe of her left foot caught, and she stumbled toward the entrance door seven feet away. When her left foot caught, it tripped her, and she could not recover. Appellant stated upon taking the step off the ramp and onto the porch, she was looking forward and following her family. Appellant averred there was no visible hazard on the black rubber mat as she walked on it and no abrupt difference in the level between the porch and the end of the ramp was visible to catch the toe of her left foot. Further, that she had no reason to look down at her left foot after her right foot reached the porch because the porch looked free and clear of anything that would impede her step.

{¶ 10} Appellant averred that as she reached the top of the ramp and let go of the handrail, she was paying attention to her niece a step ahead of her, her sister Evelyn who was carrying a child, her nephew who was carrying a child, and to others entering the porch from the front stairs. She stated her attention was drawn to her family and other persons on the porch and the activity entering the restaurant through the door.

{¶ 11} Also attached to appellant's response to the motion for summary judgment is the affidavit of Dustin Willgohs ("Willgohs"), appellant's nephew. Willgohs averred that on the day in question, appellant was a step behind his wife as they all walked up the ramp and, as she was walking on the mat-covered end of the ramp where it adjoined the porch or landing, she stumbled forward towards the entrance door, falling on the tiled porch. Willgohs stated he returned to the restaurant on October 17, 2014 to see what caused appellant to fall and the ramp, runner on the ramp, and mat on the top of the ramp looked fine. However, he noticed some "give" to the mat upon downward pressure in the area of the ramp adjoining the porch. Willgohs took four photographs on October 17, 2014 of the area in question and went back on October 24, 2017 to take five additional photographs. The photographs are attached to his affidavit.

{¶ 12} Appellant also submitted the affidavit of Kurtis Whitling ("Whitling"), a mechanical engineer at CED Technologies. Whitling stated he inspected the ramp at issue on December 30. He averred that, with the mat removed, the vertical height difference at the transition from the wooden ramp to the tile floor ranged from 1 1/8 inch at the west end, to 1 ¼ inch in the center, to 7/8 inch at the east end of the ramp. Whitling opined the sharp vertical offset provided a tripping hazard which would be a dangerous condition for patrons and that the hazard was hidden by the black material and black rubber mat. Whitling also opined that the idea that a two-inch offset is insubstantial conflicts with all standards of construction. He concluded the vertical height difference between the tile and base of the ramp where appellant's left toe caught was between 1 1/8 inch and 1 ¼ inch and caused her to stumble. Whitling also opined as to how the hazard should have been fixed by properly replacing the mortar built up on the west side of the ramp.

{¶ 13} Appellant filed the deposition of Nan Lin ("Lin"). Lin testified that when the restaurant opened in 2009, the ramp is "pretty much" how it is now, and they have not changed the dimension or structure of the ramp at all. The ramp was there when Lin purchased the property. The tiles, handrails, and slope of the ramp have not changed since he purchased the restaurant in 2009. Lin did put in lights in the area to improve visibility and also put in a non-slip runner on the ramp.

{¶ 14} The trial court issued a judgment entry on May 17, 2017. The trial court found that a black rubber mat ran over the top edge of the ramp and onto the tiled platform and, under the mat, the wooden ramp was slightly lower than the platform, and a small lip existed where the ramp transitioned to the platform. Further, that photographs taken shortly after the incident show a small hump visible beneath the rubber mat where it lay across the transition from the ramp to the platform. The trial court noted the height of the "lip was reduced by the rubber mat lying across it," and, according to appellant's expert report, the height of the lip was approximately one inch. The trial court noted the following testimony of appellant: appellant admits she observed the black runner and could clearly see the area where the mat transitioned onto the tiled platform; appellant admits she was able to negotiate the transition with her right foot without any problem, but when she stepped with her left foot, her toe caught, she stumbled and fell; appellant admits the area where she was walking was observable and nothing obstructed her ability to view the ramp and tile platform; and while she stated in her affidavit she was paying attention to family and patrons ahead of her on the ramp, she testified in her deposition that she was not distracted by anything as she walked up the ramp.

{¶ 15} The trial court found, based upon the testimony of appellant and the photographs submitted showing a slight lip at the transition from the end of the ramp to the tiled platform, the defect was open and obvious. The trial court stated the exposed lip at the edge of the black runner and slight hump in the mat is clearly shown in appellant's own photographs. Further, that the rubber mat served to smooth over the transition from the ramp to the platform without actually concealing the transition. The trial court noted appellant's admissions that she could see the ramp, knew the ramp was going up to the landing, and knew the black rubber mat lay across the transition. The trial court found appellant's testimony that she "saw nothing to make me think there was any reason why I shouldn't step up" important, as it meant appellant understood she had to step up onto the landing. The trial court found reasonable people viewing the photographs can only conclude the slight difference in height between the end of the ramp and tiled platform was open and obvious.

{¶ 16} Further, that appellant failed to produce any evidence of attendant circumstances. While she stated in her affidavit her "anticipation and attention" was drawn to her family and the activity entering through the restaurant, the trial court found these are not circumstances beyond her control. Rather, appellant was simply describing her own activities at the time of the fall. The trial court also relied on appellant's testimony that she was not distracted by anything when she fell.

{¶ 17} The trial court also found the trivial defect or two-inch rule applies to bar appellant's claim. The trial court stated appellant's evidence establishes the greatest differential between the ramp and the platform was 1 ¼ inch and these measurements were taken without the black runner or map over the lip. Further, appellant's expert report and photographs demonstrate that, with the mat present, the offset is approximately one inch.

{¶ 18} The trial court found there is no evidence of attendant circumstances to rebut the two-inch rule, as the weather was dry, it was light out, appellant stated she had no visibility problems, appellant testified there was nothing obstructing her view of the ramp or the threshold, appellant stated she was not distracted, appellant was able to negotiate the lip with her right foot without any difficulty an instant earlier, and appellant was not able to state with certainty what her left toe caught on. As to appellant's argument that the rubber mat itself was an attendant circumstance because it hid the offset, the trial court found appellant's photographs show the lip at the transition from the ramp to the tiled platform is clearly visible as one approached the top of the ramp. Further, appellant's self-serving affidavit that the difference in the level between the ramp and porch was not visible is contradicted by her own testimony and own photographs.

{¶ 19} The trial court found Wasabi House was entitled to judgment as a matter of law and granted Wasabi House's motion for summary judgment.

{¶ 20} Appellant appeals the May 17, 2017 judgment entry of the Stark County Court of Common Pleas and assigns the following as error:

{¶ 21} "I. THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT BY FINDING THAT THE APPELLANT WAS INJURED BY AN OPEN AND OBVIOUS HAZARD, WHERE THE TRIP HAZARD WAS HIDDEN FROM VIEW BY A FLEXIBLE BLACK RUBBER MAT THAT DEPRESSED AS THE APPELLANT WALKED OVER IT.

{¶ 22} "II. THE COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT BASED UPON THE "TWO INCH RULE" WHERE THE TRIP HAZARD WAS HIDDEN FROM VIEW AND NOT SUBJECT TO OBSERVATION BECAUSE THE HAZARD WAS COVERED WITH A FLEXIBLE BLACK RUBBER MAT THAT DEPRESSED AS THE APPELLANT WALKED OVER IT.

{¶ 23} "III. THE COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE THE APPELLANT'S DIRECT, CIRCUMSTANTIAL AND EXPERT TESTIMONY ESTABLISHED THAT THE TRIP POINT THAT CAUGHT THE TOE OF THE APPELLANT'S LEFT FOOT AND CAUSED HER TO STUMBLE AND FALL WHICH WAS NOT VISIBLE OR OBSERVABLE BUT WAS PRODUCED BY THE PRESSURE OF THE APPELLANT'S LEFT FOOT DEPRESSING THE BLACK RUBBER MAT THAT RESTED ON THE TILE PORCH AND THE END OF THE HANDICAP RAMP.

{¶ 24} "IV. THE COURT ERRED IN GRANTING SUMMARY JUDGMENT WHERE ALL DIRECT, CIRCUMSTANTIAL AND EXPERT TESTIMONY OFFERED BY APPELLANT WAS THAT THE DISTANCE IN ELEVATION BETWEEN THE EDGE OF THE TILE PORCH AND THE END OF THE WOODEN HANDICAP RAMP CREATED A SUBSTANTIAL HAZARD BECAUSE THE VERTICAL DISTANCE WAS NOT OBSERVABLE UNDERNEATH

THE BLACK RUBBER MAT THE COVERED IT.

{¶ 25} "V. THE COURT ERRED IN GRANTING APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE THE APPELLANT HAS OFFERED DIRECT, CIRCUMSTANTIAL AND EXPERT TESTIMONY THAT ESTABLISHED THAT THE DEFECT AND HAZARD WHICH PROXIMATELY CAUSED THE APPELLANT TO STUMBLE AND FALL WAS HIDDEN FROM OBSERVATION AND VIEW BENEATH A FLEXIBLE BLACK RUBBER MAT.

{¶ 26} "VI. THE COURT ERRED IN HOLDING THAT "THE APPELLANT'S STATEMENT THAT THE DIFFERENCE IN LEVEL BETWEEN THE END OF THE WOODEN RAMP AND THE TILED PORCH WAS NOT VISIBLE IS FLATLY CONTRADICTED BY HER OWN PHOTOGRAPHS" BECAUSE PHOTOS OF THE RUBBER MAT IN PLACE DO NOT SHOW WHAT WAS UNDER THE MAT AND WHETHER OR NOT CONCRETE OR OTHER RAMPING MATERIAL WAS ON THE WOODEN END OF THE RAMP UNDER THE MAT, THAT WOULD HAVE ELIMINATED THE VERTICAL TRIP HAZARD, SIMILAR TO THE CONCRETE SHOWN TO THE RIGHT OF THE BLACK RUBBER MAT IN THE APPELLANT'S PHOTOGRAPH EVIDENCE."

{¶ 27} While appellant lists six assignments of error, we find these assignments of error deal with two issues: the open and obvious nature of the alleged defect and the two-inch rule. Accordingly, we will review several of these assignments of error together.

Summary Judgment Standard

{¶ 28} Civil Rule 56(C) in reviewing a motion for summary judgment which provides, in pertinent part:

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed mostly strongly in the party's favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

{¶ 29} A trial court should not enter a summary judgment if it appears a material fact is genuinely disputed, nor if, construing the allegations most favorably towards the non-moving party, reasonable minds could draw different conclusions from the undisputed facts. Hounshell v. Am. States Ins. Co. , 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning-Ferris Indus. of Ohio, Inc. , 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc. , 135 Ohio App.3d 301, 733 N.E.2d 1186 (6th Dist. 1999).

{¶ 30} When reviewing a trial court's decision to grant summary judgment, an appellate court applies the same standard used by the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer , 90 Ohio St.3d 388, 738 N.E.2d 1243 (2000).

{¶ 31} The party moving for summary judgment bears the initial burden of informing the trial court of the basis of the motion and identifying the portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the non-moving party's claim. Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to the non-moving party to set forth specific facts demonstrating a genuine issue of material fact does exist. Id. The non-moving party may not rest upon the allegations and denials in the pleadings, but instead must submit some evidentiary materials showing a genuine dispute over material facts. Henkle v. Henkle , 75 Ohio App.3d 732, 600 N.E.2d 791 (12th Dist. 1991).

I., III., V.

{¶ 32} In her first, third, and fifth assignments of error, appellant contends the trial court erred in granting summary judgment based upon the open and obvious doctrine.

{¶ 33} The issue in this case is whether Wasabi House was negligent. In order to establish a claim for negligence, a plaintiff must show: (1) a duty on the part of defendant to protect the plaintiff from injury; (2) a breach of that duty; and (3) an injury proximately resulting from the breach. Jeffers v. Olexo , 43 Ohio St.3d 140, 539 N.E.2d 614 (1989).

{¶ 34} There is no dispute between the parties that on October 17, 2014, appellant was a business invitee. An invitee is a person who rightfully enters and remains on the premises of another at the express or implied invitation of the owner and for a purpose beneficial to the owner. Carpenter v. Mount Vernon Gateway, Ltd. , 5th Dist. Knox No. 13CA6, 2014-Ohio-465, 2014 WL 548166. The owner or occupier of the premises owes the invitee a duty to exercise ordinary care to maintain its premises in a reasonably safe condition, such that its invitees will not unreasonably or unnecessarily be exposed to danger. Paschal v. Rite Aid Pharmacy, Inc. , 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). A premises owner must warn its invitees of latent or concealed dangers if the owner knows or has reason to know of the hidden dangers. Id. However, a premises owner is not an insurer of its invitees' safety against all forms of accident that may happen. Id. Invitees are expected to take reasonable precautions to avoid dangers that are patent or obvious. Sidle v. Humphrey , 13 Ohio St.2d 45, 233 N.E.2d 589 (1968).

Open & Obvious

{¶ 35} Under Ohio law, a business owner owes no duty to protect an invitee from dangers that are known to the invitee or are so obvious and apparent to the invitee that he or she may be reasonably expected to discover them and protect him or her against them. Sidle v. Humphrey , 13 Ohio St.2d 45, 233 N.E.2d 589 (1968).

{¶ 36} In Armstrong v. Best Buy Company, Inc. , the Ohio Supreme Court found a premises owner owes no duty to persons entering the premises regarding dangers that are open and obvious. 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088. The rationale of the open and obvious doctrine is that the open and obvious nature of the hazard itself serves as a warning, so that owners reasonably may expect their invitees to discover the hazard and take appropriate measures to protect themselves against it.

Simmers v. Bentley Constr. Co. , 64 Ohio St.3d 642, 597 N.E.2d 504 (1992). Therefore, when a danger is open and obvious, a premises owner owes no duty of care to individuals lawfully on the premises. Armstrong v. Best Buy Co., Inc. , 99 Ohio St.3d 79, 2003-Ohio-2573, 788 N.E.2d 1088. When applicable, the open and obvious doctrine obviates the duty to warn and acts as a complete bar to any negligence claim. Aycock v. Sandy Valley Church of God , 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105, 2008 WL 115829.

{¶ 37} The law uses an objective, not subjective, standard when determining whether a danger is open and obvious. Freeman v. Value City Dept. Store , 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634, 2010 WL 3766806. The fact that a particular appellant himself or herself is not aware of the hazard is not dispositive of the issue. Id. It is the objective, reasonable person that must find the danger is not obvious or apparent. Id. The determinative issue is whether the condition is observable. Aycock v. Sandy Valley Church of God , 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105, 2008 WL 115829.

{¶ 38} Appellant contends courts have ruled whether a condition is open and obvious is a jury question that is not decided as a matter of law and cites cases in support of her argument that the open and obvious doctrine is an extremely factual inquiry and should not be decided via summary judgment. However, this Court has ruled that, in most situations, whether a danger is open and obvious presents a question of law. Id. Under certain circumstances, disputed facts may exist regarding the openness and obviousness of the danger. Id. However, where only one conclusion can be drawn from the established facts, the issue of whether a risk was open and obvious is decided by the court as a matter of law. Id. Further, the cases cited by appellant are distinguishable from the instant case, as in these cases there was conflicting testimony either as to whether the condition was obscured by a wall or conflicting evidence as to the visibility on the stairway at the time of the fall. Hill v. Mullins , 2017-Ohio-1302, 88 N.E.3d 575 ; Watson v. Bradley , 2017-Ohio-431, 84 N.E.3d 97.

{¶ 39} In this case, appellant testified she could see there was a ramp; could see the condition of the ramp as she was walking; could see the ramp was going up to the landing; could see the black mat on the ramp; could see the condition of the ramp; was able to look down and see where she was putting her foot; saw nothing to make her think there was any reason she shouldn't step up; it was obvious it was a ramp; and it was obvious there was a runner on the ramp. Appellant also testified the photographs taken by her nephew shortly after the incident show the condition of the area on the day of her fall. These photographs clearly show the lip at the transition from the end of the ramp to the tile platform and also fully show the slight hump in the black mat. Thus, the slight difference in height between the end of the ramp and the tiled platform was open and obvious, and the nature of the condition was observable.

{¶ 40} We find this case analogous to cases finding no genuine issue of material fact exists, particularly the case of Bauermeister v. Real Pit BBQ, LLC , 5th Dist. Delaware No. 14 CAE 04 024, 2014-Ohio-4501, 2014 WL 5089094, in which the plaintiff fell exiting a restaurant. This Court found the slope and riser deviation was open and recognizable, as observed in the photographs provided. Id. See also Ryan v. Gaun , 5th Dist. Licking No. 2003CA00110, 2004-Ohio-4032, 2004 WL 1728519 (rejecting appellant's argument that the hazard presented by the steep slope was hidden and latent and finding the hazard presented by the slope was open and obvious, even though the exact degree of the slope was unknown and finding appellees' failure to provide notice of the exact slope degree of the ramp does not render the ramp a latent, hidden danger); Freeman v. Value City Dept. Store, 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634, 2010 WL 3766806 (holding threshold was open and obvious because it was neither hidden from view nor concealed as the plaintiff testified nothing obstructed her view and she had a clear view of where she was going); Snyder v. Kings Sleep Shop, LLC , 6th Dist. Williams No. WM-13-006, 2014-Ohio-1003, 2014 WL 1343678 (holding danger posed by ramp in doorway of store was open and obvious); Jackson v. Board of Pike Commissioners , 4th Dist. Pike No. 10CA805, 2010-Ohio-4875, 2010 WL 3902618 (holding danger associated with sidewalk and handicap ramp was open and obvious because nothing about the danger is hidden or concealed from view).

{¶ 41} Appellant next argues summary judgment is inappropriate due to the statement in her affidavit that there was no visible hazard on the black rubber mat as she walked on it.

{¶ 42} However, as we stated in Patterson v. Licking Twp. , 5th Dist. Licking No. 17-CA-3, 2017-Ohio-5803, 2017 WL 2964196, "a self-serving affidavit that is not corroborated by any evidence is insufficient to establish the existence of an issue of material fact," and "to conclude otherwise would enable the nonmoving party to avoid summary judgment in every case." See also Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47 (holding "an affidavit of a party opposing summary judgment that contradicts former deposition testimony of that party may not, without sufficient explanation, create a genuine issue of material fact to defeat a motion for summary judgment"). In her deposition testimony, appellant stated she could see the condition of the ramp as she was walking, could see the black mat on the ramp, was able to look down and see where she was putting her foot, knew she had to step up, and that it was obvious there was a runner on the ramp. Further, the photographs submitted by appellant and taken by her nephew contradict appellant's testimony, as the open and obvious nature of the exposed lip at the right and left edges of the black runner and the hump visible from the black rubber mat is fully shown. As in Patterson , appellant has not corroborated her affidavit with any evidence or included in her affidavit any specific facts which establish the existence of any issue of material fact.

{¶ 43} Appellant finally contends the trial court erred in applying the open and obvious doctrine because Whitling opined as to how the hazard should have been fixed by properly replacing the mortar built up on the west side of the ramp. However, as this Court has previously stated, "the landowner's duty is not to be determined by questioning whether the condition could have been made perfect or foolproof. The issue is whether the conditions that did exist were so open and obvious to any person exercising reasonable care and watching where she was going." Bauermeister v. Real Pit BBQ, LLC , 5th Dist. Delaware No. 14 CAE 04 0024, 2014-Ohio-4501, 2014 WL 5089094.

Attendant Circumstances

{¶ 44} An exception to the open and obvious doctrine is the existence of attendant circumstances. Aycock v. Sandy Valley Church of God , 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105, 2008 WL 115829. These attendant circumstances may exist which distract an individual from exercising the degree of care an ordinary person would have exercised to avoid the danger, and may create a genuine issue of material fact as to whether a hazard is open and obvious. Id. For this exception to apply, an attendant circumstance must divert the attention of the injured party, significantly enhance the danger of the defect, and contribute to the injury. Bovetsky v. Marc Glassman, Inc. 5th Dist. Stark No. 2016CA00122, 2016-Ohio-7863, 2016 WL 6906148.

{¶ 45} There is no precise definition of attendant circumstances. Mulcahy v. Best Buy Stores, LP , 5th Dist. Delaware No. 13 CAE 06 0051, 2014-Ohio-1163, 2014 WL 1340657. Attendant circumstances are factors that contribute to a fall and are beyond the injured person's control. Id. The phrase refers to all circumstances surrounding the event, such as time and place, the environment or background of the event, and the conditions normally existing that would unreasonably increase the normal risk of a harmful result of the event. Aycock v. Sandy Valley Church of God , 5th Dist. Tuscarawas No. 2006AP090054, 2008-Ohio-105, 2008 WL 115829.

{¶ 46} Attendant circumstances do not include the individual's activity at the moment of the fall, unless the individual's attention was diverted by an unusual circumstance of the property owner's making. Id. , citing McGuire v. Sears, Roebuck & Co. , 118 Ohio App.3d 494, 693 N.E.2d 807 (1st Dist. 1996). Further, an individual's particular sensibilities do not play a role in determining whether attendant circumstances make the individual unable to appreciate the open and obvious nature of the danger. Freeman v. Value City Dept. Store , 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634, 2010 WL 3766806. Rather, the analysis of attendant circumstances uses an objective test. Mulcahy v. Best Buy Stores, LP , 5th Dist. Delaware No. 13 CAE 06 0051, 2014-Ohio-1163, 2014 WL 1340657.

{¶ 47} Appellant alleges there are two attendant circumstances that create a genuine issue of material fact as to whether the hazard is open and obvious. Appellant first alleges her averment in her affidavit that "her attention was drawn to her family and other persons on the porch and the activity entering the restaurant through the door" was sufficient evidence of attendant circumstances to create a genuine issue of material fact.

{¶ 48} However, as this Court held in Kraft v. Johnny Biggs Mansfield, LLC , 5th Dist. Richland No. 2012 CA 0068, 2012-Ohio-5502, 2012 WL 5985086, "normal traffic" of people coming in and out of a restaurant is not a circumstance so significant or unusual as to rise to the level of attendant circumstances. Further, in Rayburn v. Delaware Co. Agricultural Society , 5th Dist. Delaware No. 15 CAE 02 0016, 2015-Ohio-1903, 2015 WL 2375858, we held there was no evidence to establish the numerous people in the area distracted plaintiff to the point of reducing the degree of care an ordinary person would exercise. See also Gurcarkowski v. McPeek Funeral Home , 5th Dist. Licking No. CA-3479, 1990 WL 15752 (finding no attendant circumstances on a standard pedestrian sidewalk); Freeman v. Value City Dept. Store, 5th Dist. Stark No. 2010 CA 00034, 2010-Ohio-4634, 2010 WL 3766806 (finding no attendant circumstance when plaintiff testified nothing was distracting her at the time of the incident); Jackson v. Board of Pike Commissioners , 4th Dist. Pike No. 10CA805, 2010-Ohio-4875, 2010 WL 3902618 (finding moving to the side to let someone pass on a handicap ramp is not an attendant circumstance); Frano v. Red Robin Int'l, Inc. , 181 Ohio App.3d 13, 2009-Ohio-685, 907 N.E.2d 796 (11th Dist.)

(finding no attendant circumstances when the record did not contain evidence the plaintiff was distracted by the atmosphere of the restaurant).

{¶ 49} In this case, appellant testified that, at the time of the incident, it was still light out, there was no precipitation, she had no visibility problems, she could see where she was walking, and nothing obstructed her view of the ramp or the threshold. Additionally, appellant specifically stated there was "nothing to distract her" as she was walking towards the door and she was capable of observing both the ramp and the threshold in her field of vision. Thus, there is no evidence her family or other people entering the restaurant distracted appellant to the point of reducing the degree of care an ordinary person would exercise.

{¶ 50} Appellant also argues the black mat was an attendant circumstance because she was distracted by the mat. However, appellant testified she saw the ramp, saw the black mat on the ramp, understood she needed to step up to the tiled foyer, and nothing distracted her as she was walking towards the door. When asked where her left toe hit, appellant stated, "I'm going to say I'm not positive." Further, when asked what was different about moving her left foot that was different from her right foot, appellant testified, "I don't know." Additionally, there is evidence that the mat actually lessened the vertical distance at the transition between the wooden ramp to the tiled floor. Thus, the existence of the black mat is not a circumstance that significantly enhanced the danger of the defect or hazard and contributed to the injury.

{¶ 51} We find that reasonable minds could only conclude the threshold was open and obvious. We further find no evidence of any attendant circumstances which enhanced the danger to appellant and contributed to her fall. We therefore find Wasabi House owed no duty to appellant and the trial court did not err in granting summary judgment to Wasabi House. Appellant's first, third, and fifth assignments of error are overruled.

II., IV, VI.

{¶ 52} In her second, fourth, and sixth assignments of error, appellant argues the trial court erred in finding the "two inch rule" or the "trivial defect" rule bars recovery in this case. Appellant contends the difference is substantial and the two-inch rule is not a bright-line test, but depends on the circumstances. Further, that the two-inch rule does not apply because the trip point beneath the mat could not be seen and the distance between appellant's right foot on the ramp and the step up to the foyer was greater than two inches. Appellant also contends there were attendant circumstances to render the defect substantial.

{¶ 53} The Ohio Supreme Court has declined to hold property owners and occupiers liable as a matter of law for injuries due to minor or trivial imperfections that were not unreasonably dangerous, are commonly encountered, and to be expected. In Kimball v. Cincinnati , 160 Ohio St. 370, 116 N.E.2d 708 (1953), the Ohio Supreme Court held that a height variation less than two inches is a slight defect as a matter of law that precludes a finding of negligence. In Helms v. American Legion, Inc. , 5 Ohio St.2d 60, 213 N.E.2d 734 (1966), the Ohio Supreme Court reaffirmed its holding in Kimball and extended the two-inch rule to privately owned or occupied properties.

{¶ 54} In Cash v. Cincinnati , 66 Ohio St.2d 319, 421 N.E.2d 1275 (1981), the Ohio Supreme Court again reviewed the two-inch rule. The Court clarified the two-inch rule and stated courts must also consider any attendant circumstances in determining whether liability exists for trivial defects. Thus, in Cash , the Ohio Supreme Court established that a height difference of two inches or less is insubstantial as a matter of law, unless attendant circumstances are shown to elevate the defect to an unreasonably dangerous condition. Id.

{¶ 55} Appellant contends the two-inch rule is not applicable in this case because the hazard at issue is not a vertical distance of less than two inches. However, this argument is contradicted by her expert's testimony. Whitling stated that, with the mat removed, the vertical height difference at the transition from the wooden ramp to the tile floor varied from 7/8 inch to 1 ¼ inch at the highest point. Further, with the mat on the ramp, Whitling approximated the height difference to be about one inch. Additionally, in the photographs provided by appellant, taken by her nephew shortly after the incident, the vertical height difference is shown to be less than two inches.

{¶ 56} As discussed in detail above, appellant also argues attendant circumstances elevate the defect to an unreasonably dangerous condition. Appellant contends this case is analogous to Cash, Hill, and Neura , in which courts found attendant circumstances provided a genuine issue of material fact as to the two-inch rule. However, we find these cases distinguishable from the instant case. In Cash , 66 Ohio St.2d 319, 421 N.E.2d 1275 (1981), the Ohio Supreme Court found where a depression is twelve to fourteen inches wide, a pedestrian who approaches an intersection in a major city had his attention diverted by traffic signal lights, surrounding vehicular traffic, and other pedestrian traffic and these conditions would likely tend to increase the dangers of such a defect in this location. The attendant circumstances present in Cash are not present in this case. In this case, appellant testified it was still light out, there was no precipitation, she had no visibility problems, she could see where she was walking, nothing obstructed her view of the ramp or threshold, she successfully negotiated the step up with her right foot, and there was "nothing to distract her" as she was walking towards the door. See Gurcarkowski v. McPeek Funeral Home , 5th Dist. Licking No. CA-3479, 1990 WL 15752.

{¶ 57} Neura v. Goodwill Industries , 9th Dist. Medina No. 11CA0052-M, 2012-Ohio-2351, 2012 WL 1925403 is distinguishable from the instant case because the plaintiff in that case testified her full shopping cart obstructed her view of the ground. In this case, appellant testified nothing obstructed her view of either the ramp or threshold. Hill v. Mullins , 2017-Ohio-1302, 88 N.E.3d 575 is also distinguishable from the instant case, as the court in that case did not find attendant circumstances to be a person talking to her, but found a genuine issue of material fact as to attendant circumstances because plaintiff testified about a wall obscuring her vantage point of the hazard. In fact, the court noted, "walking behind someone while that person is conversing and/or gesturing is not an unusual circumstance." Id. In this case, appellant testified she could look down and see where she was putting her foot, could see the ramp, could see the runner, and the ramp and threshold were capable of observation within her field of vision.

{¶ 58} Accordingly, we find reasonable minds could only conclude the defect was trivial and not rendered a substantial one because of any attendant circumstances. See Callentine v. Mill Investments , 5th Dist. Tuscarawas No. 2017 AP 06 0014, 2017-Ohio-8634, 2017 WL 5565502. We find the trial court properly applied the trivial defect rule to bar appellant's negligence claim as no duty exists where an alleged defect is minor or insubstantial. Appellant's second, fourth, and sixth assignments of error are overruled.

{¶ 59} Based on the foregoing, appellant's assignments of error are overruled.

{¶ 60} The May 17, 2017 judgment entry of the Stark County Court of Common Pleas is affirmed.

Wise, Earle, J., concur;

Hoffman, J., dissents

Hoffman, J., dissenting

{¶ 61} I respectfully dissent from the majority opinion.

{¶ 62} While I agree there were no "attendant circumstances" in this case to justify an exception to the open-and-obvious rule, I find reasonable minds, when considering the evidence in the light most favorable to Appellant as required by Civ.R. 56, could differ as to whether the alleged danger was, in fact, open and obvious.

{¶ 63} Due to the "give" [flexibility] of the mat the top of the ramp and the fact the mat covered the offset between the top of the ramp and the tile floor, a reasonable trier-of-fact could find a lip was created by stepping on the mat near the top of the ramp. Given the fact a person's normal gate is to put one foot ahead of the other when walking, it is not necessarily inconsistent Appellant's right foot may have safely stepped over the top of the ramp while Appellant's left foot caught on the lip created by the "give" of the mat where the gap existed. I find sufficient evidence exists to create a genuine dispute as to whether the alleged hazard was open and obvious.

{¶ 64} I further disagree with the trial court's and majority's determination no liability exists because the "two-inch rule" bars recovery, finding the height differential was "trivial." While the height differential may have been trivial, all the cases applying the two-inch rule involve situations where the height differential was observable.

{¶ 65} Because the black mat covered the gap between the top of the ramp and the tile floor, the height differential caused by the give in the mat was not observable. As such, I find the two-inch rule inapplicable when the gap is not open to observation but rather covered or obscured.


author: MELODY J. STEWART, J.:

text:
    STATE of Ohio, Plaintiff-Appellant v. Kyle M. WEAVER, Defendant-Appellee
    No. 105716
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: January 18, 2018
    Michael C. O'Malley, Cuyahoga County Prosecutor, Anthony Thomas Miranda, Anna Woods, Assistant County Prosecutors, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, OH 44113, ATTORNEYS FOR APPELLANT
    Joseph C. Patituce, Megan Patituce, Catherine Meehan, Patituce & Associates, 26777 Lorain Road, Suite 1, North Olmsted, OH 44070, ATTORNEYS FOR APPELLEE
    BEFORE: Stewart, J., McCormack, P.J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   MELODY J. STEWART, J.:

{¶ 1} This court granted the state of Ohio leave to appeal from the trial court's order granting defendant-appellee Kyle Weaver's motion for intervention in lieu of conviction ("ILC") on two counts in a four-count indictment. In its sole assignment of error, the state argues that the trial court erred by imposing ILC for two counts when the indictment also contained two counts that are ineligible for ILC. We affirm the decision of the trial court.

{¶ 2} North Royalton Police initiated a traffic stop after observing Weaver speeding and weaving in his lane. The officer stated that Weaver appeared to be "drunk-like, disoriented, dazed and confused." The officer administered field sobriety tests, after which he believed he had probable cause to arrest Weaver and did so. Upon an inventory search of Weaver's car, the police discovered a firearm and five rounds of ammunition.

{¶ 3} Weaver was charged in a four-count indictment. Count 1 charged improperly handling firearms in a motor vehicle, in violation of R.C. 2923.16(B), a fourth-degree felony; Count 2, driving while under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor; Count 3, driving while under the influence of alcohol, in violation of R.C. 4511.19(A)(1)(d), a first-degree misdemeanor; and Count 4, falsification, in violation of R.C. 2921.13(A)(3), a first-degree misdemeanor.

{¶ 4} After initially pleading not guilty to all counts, Weaver moved the court pursuant to R.C. 2951.041 for ILC on Counts 1 and 4. Counts 2 and 3, DUI

offenses, were not eligible for ILC. See R.C. 2951.041(B)(2). The state does not dispute that Counts 1 and 4, standing alone, would be eligible for ILC. However, the state opposed Weaver's motion, arguing that the ineligible Counts, 2 and 3, caused Weaver to be ineligible for ILC for Counts 1 and 4.

{¶ 5} The court conducted a hearing where Weaver pleaded guilty to all four counts. The court accepted his pleas, found Weaver guilty on Counts 2 and 3, and stated that it "will forbear making adjudication of guilt on Counts 1 and 4, and instead place Mr. Weaver in [ILC] * * *." Tr. 14-15. As to Counts 2 and 3, the court stated "I'm going to sentence him to three days in the driving intervention program, fine him $375, suspend his licence for six months, court costs." Tr. 17.

{¶ 6} At the outset, we note that it initially appeared that we did not have a final appealable order. In State v. Dempsey , 8th Dist. Cuyahoga No. 82154, 2003-Ohio-2579, 2003 WL 21154170, a panel of this court dismissed a defendant's appeal challenging the specific terms of the ILC imposed by the court below. The panel noted that a person does not have a right to ILC; but rather "[ILC] is a special opportunity provided to select defendants who are deemed eligible by the trial court." Id. at ¶ 9. The panel then dismissed the defendant's challenge because the trial court's ILC terms did not affect a "substantial right" and therefore did not present a final appealable order pursuant to R.C. 2505.02. Id. at ¶ 8, 11.

{¶ 7} The case before us is distinguishable from Dempsey on procedural grounds. Here, the state is the party appealing the court's award of ILC. We find the rationale used by the Twelfth District in a procedurally similar case to be applicable here. See State v. Casto , 12th Dist. Clermont No. CA2008-08-033, 2009-Ohio-791, 2009 WL 428009. In Casto , the defendant-appellee pleaded guilty and moved for ILC. Id. at ¶ 2-4. Over the state's objection, the court stayed the criminal proceedings and imposed ILC, and the state appealed. Id. at ¶ 4-5. The Twelfth District distinguished Dempsey and found it had jurisdiction over the state's appeal because the trial court's order granting ILC affected a "substantial right" of the state, namely the right to prosecute its criminal cases. Id. at ¶ 10. If the state was prohibited from appealing, it would have no recourse to challenge the propriety of ILC in any given case. Id. The same is true here. Accordingly, there is a final appealable order.

{¶ 8} R.C. 2951.041 provides a mechanism by which a defendant, who has committed specified crimes, because of chemical abuse, may seek rehabilitative intervention in favor of a criminal conviction. This statute represents the legislature's determination that in such cases it is better to focus on, and treat, the root causes of the crime rather than just punish the resulting violation. See State v. Stanovich , 173 Ohio App.3d 304, 2007-Ohio-4234, 878 N.E.2d 641, ¶ 9 (3d Dist.).

{¶ 9} R.C. 2951.041(A)(1) prescribes how a person must demonstrate to the court that his or her alcohol or drug usage "was a factor leading to the criminal offense" for which ILC is sought. The statute grants the court discretion whether to entertain the defendant's request for ILC. Id. If the court decides to consider the request, the statute gives the court further discretion to accept or deny it after an eligibility hearing. Id.

{¶ 10} The statute circumscribes ILC eligibility in various ways. See R.C. 2951.041(B). For example, if a person has previously been convicted of certain crimes, such as any felony offense of violence, that person is ineligible for ILC for subsequent otherwise eligible offenses. R.C. 2951.041(B)(1). The statute also excludes specific offenses from ILC, such as Weaver's violations of R.C. 4511.19(A). See R.C. 2951.041(B)(2). Further, the statute precludes ILC for eligible offenses in instances where a person is merely charged with committing certain crimes, including various drug offenses. See R.C. 2951.041(B)(3).

{¶ 11} The state argues that Weaver was precluded from seeking ILC on Counts 1 and 4 because the indictment includes counts that are not eligible for ILC. As noted, the state is correct that Counts 2 and 3 are ineligible because they are both violations of R.C. 4511.19(A). See R.C. 2951.041(B)(2). However, we fail to see how the ineligibility of those offenses prevents Weaver from seeking ILC for his eligible offenses. Nothing in the statute leads us to that conclusion, nor does the state reference any authority that compels us to find as much.

{¶ 12} The state argues R.C. 2951.041 is ambiguous because it refers to the singular "offense" and the plural "proceedings." In subdivision (A)(1), outlining preliminary eligibility considerations, the statute refers to the offense for which the defendant seeks ILC. Subdivisions (C) and (E), on the other hand, refer to the proceedings: subdivision (C) outlines the court's discretion, providing that the court "may then stay all criminal proceedings [pursuant to its ILC terms]," and subdivision (E) directs the court to "dismiss the proceedings" upon successful completion of ILC. We reject the contention that the statute is ambiguous. The Third District squarely addressed and disposed of this argument:

R.C. 2951.041 plainly and unambiguously references "the offense" in the singular throughout, indicating that each count constituting a different crime on the indictment must be analyzed independently for purposes of determining eligibility for intervention. Likewise the phrase "criminal proceedings" in R.C. 2951.041 clearly refers to the proceedings related to the offense in question.

Stanovich , 173 Ohio App.3d 304, 2007-Ohio-4234, 878 N.E.2d 641, at ¶ 15. Moreover, we think the statute makes it abundantly clear that Weaver's violations of R.C. 4511.19 are not among the crimes that automatically disqualify a person from seeking ILC for otherwise eligible offenses. See R.C. 2951.041(B)(3), (8), (10).

{¶ 13} Next, the state argues that granting Weaver ILC for his eligible counts frustrates the purpose of the ILC statute because Weaver will still have convictions for his ineligible counts. We disagree. As the state notes, ILC was designed as "an opportunity for first time offenders to receive help with their dependency without the ramifications of a felony conviction." State v. Ingram , 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967, 2005 WL 977820, ¶ 13. We fail to see how Weaver is not such a person to benefit from the statute. He is a first time offender and, upon successful completion of the court's ILC terms, will avoid both a felony and a misdemeanor conviction. The fact that he pleaded guilty to other misdemeanor offenses does not change this.

{¶ 14} We do not read R.C. 2951.041 as requiring the court to deny ILC for Weaver. There is no provision in the statute that commands a court to deny ILC for otherwise eligible violations solely because a person is also charged with violating R.C. 4511.19(A). To the contrary, the statute gives a court discretion to make that determination. See R.C. 2951.041(C) ("At the conclusion of a hearing held pursuant to division (A) of this section, the court shall enter its determination as to whether the offender is eligible for [ILC] and as to whether to grant the offender's request.").

In this case, the court determined that Weaver was eligible for ILC for Counts 1 and 4, and imposed it accordingly. We find no error.

{¶ 15} Judgment affirmed.

TIM McCORMACK, P.J., and PATRICIA ANN BLACKMON, J., CONCUR