# State v. Shoaf > Ohio Court of Appeals · September 28, 2000 · 140 Ohio App. 3d 75 URL: https://www.frixlaw.com/law-library/cases/3690904 ## Case - **Full name:** The STATE of Ohio, Appellant, v. SHOAF, Appellee - **Court:** Ohio Court of Appeals - **Decided:** September 28, 2000 - **Citations:** 140 Ohio App. 3d 75; 746 N.E.2d 674 - **Precedential status:** Published - **Opinion:** Dissent by Tyack - **Judges:** Brown, Deshler, Tyack - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3690904 ## Opinion text Tyack, Judge, dissenting. “Treatment in lieu of conviction” was made a part of a revision of the Ohio Revised Code that was enacted effective July 1, 1976. The statute that was enacted related to treatment in lieu of conviction was R.C. 2951.041. The statute read and still reads in R.C. 2951.041(F): “If the appropriate drug treatment facility or program reports to the probation officer that the offender has successfully completed treatment and is rehabilitated, the court may dismiss the charges pending against the offender. If the facility or program reports to the probation officer that the offender has successfully completed treatment and is rehabilitated or has obtained maximum benefits from treatment and that the offender has completed the period of rehabilitation and other conditions ordered by the court, the court shall dismiss the charges pending against the offender. If the facility or program reports to the probation officer that the offender has failed treatment, has failed to submit to or follow the prescribed treatment, or has become a discipline problem, if the offender does not satisfactorily complete the period of rehabilitation or the, other conditions ordered by the court, or if the offender violates the conditions of the period of rehabilitation, the offender shall be arrested as provided in section 2951.08 of the Revised Code and removed from the facility or program, and the court immediately shall hold a hearing to determine if the offender failed treatment, failed to submit to or follow the prescribed treatment, did not *80 satisfactorily complete the period of rehabilitation or any other condition ordered by the court, or violated any condition of the period of rehabilitation. If the court so determines, it immediately shall enter an adjudication of guilt and shall impose upon the offender a term of imprisonment. “At any time and for any appropriate reason, the offender, the offender’s probation officer, the authority or department that has the duty to control and supervise the offender as provided for in section 2951.05 of the Revised Code, or the facility or program may petition the court to reconsider, suspend, or modify its order for treatment concerning that offender.” R.C. 2951.041(F). At the time R.C. 2951.041 was enacted, the procedure for granting probation was to impose a term of imprisonment and then suspend execution of the term of imprisonment while placing such conditions upon the offender as the trial judge deemed appropriate. To “impose a term of imprisonment” did not mean that a person automatically went to prison. Judges could and routinely did suspend the sentence imposed. In fact, R.C. 2951.041 was enacted as a part of R.C. Chapter 2951, “Probation.” At the time that R.C. 2951.041 was originally enacted, the legislature also created the concept of “actual incarceration,” especially for drug-related felonies. The legislature clearly knew how to specify that a term of incarceration was mandatory, but chose not to make sentences for persons who failed in their program for treatment in lieu of conviction to be forced to serve terms of “actual incarceration.” Now, almost twenty-five years after the creation of treatment in lieu of conviction, attempts are being made to re-interpret the statute so that the clause “the court shall impose upon the offender a term of imprisonment” means “the court shall impose upon the offender a term of actual incarceration.” This new interpretation is both bad law and bad public policy. The new interpretation is bad law because it violates the mandate of R.C. 2901.04(A), rules of construction. R.C. 2901.04(A) reads: “Sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused.” Although a previous panel of this court found R.C. 2951.041 to be unambiguous in State v. Taylor (Mar. 14, 2000), Franklin App. No. 99AP-533, unreported, 2000 WL 271752 the distinction between actual incarceration and term of imprisonment was not clearly discussed. Further, the Taylor case was decided without benefit of a brief being filed on behalf of appellee Taylor, so a full discussion of the pertinent law was not presented to the appellate panel by the parties. The new interpretation is bad public policy because it requires incarceration for persons who could profitably be treated outside a prison setting. Ohio’s prisons *81 are already horribly overcrowded. Incarcerating persons for alcoholism and/or drug addiction only compounds the problem of prison overcrowding while reducing the prospects of recovery for the alcoholic and/or drug addict. To state the obvious, intensive counseling and inpatient treatment are far less expensive for the state of Ohio then incarceration in a state prison. I believe that the wording of R.C. 2951.041 was not completely understood by the panel in Taylor and the mistake made by that panel should not be repeated by this panel. I, therefore, respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3690904. Public record. Not legal advice.