State v. Lynn

[Cite as State v. Lynn, 2023-Ohio-4429.]

COURT OF APPEALS

GUERNSEY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:

STATE OF OHIO : Hon. W. Scott Gwin, P.J.

: Hon. Patricia A. Delaney, J.

Plaintiff-Appellee : Hon. Andrew J. King, J.

:

-vs- :

: Case No. 23 CA 000012

RICHARD W. LYNN :

:

Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Guernsey County Court of

Common Pleas, Case No. 20CR182

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: December 6, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JASON R. FARLEY DAVID V. PATTON

Assistant Guernsey County Prosecutor 341 Aurora Road, Ste. 242

627 Wheeling Avenue Solon, OH 44139

Cambridge, OH 43725

Guernsey County, Case No. 23 CA 000012 2

Gwin, P.J.

{¶1} Defendant-appellant Richard W. Lynn [“Lynn”] appeals from the May 2,

2023 Judgement Entry of the Guernsey County Court of Common Pleas that denied his

post sentence motion to lawfully use medical marijuana while serving community control

sentence.

Facts and Procedural History

{¶2} On August 12, 2020, the Guernsey County Grand Jury returned an

Indictment charging Lynn with one count of Felonious Assault, a felony of the second

degree in violation of R.C. 2903.11(A)(1)/(D)(1)(a).

{¶3} On April 14, 2021, Lynn entered an Alford plea to one count of attempted

felonious assault, a felony of the third degree in violation of R.C. 2923.02/2903.11(A)(1).

[Docket Entry No. 97].

{¶4} On May 28, 2021, the trial judge sentenced Lynn to a 24-month term of

incarceration. [Docket Entry No. 106]. That sentence was suspended, and the trial judge

ordered Lynn to serve a sentence “up to six (6) months in the Guernsey County Jail.” Id.

The trial judge further ordered that upon completion of the jail sentence, Lynn be placed

on three years of community control, subject to the general supervision and control of the

Adult Probation Department. Lynn was ordered to serve the community control sentence

subject to, among other conditions, the condition that Lynn “shall abstain from consuming

alcohol and from using illegal/non-prescribed drugs during his period of supervision.” Id.

at page 3, ¶7(A).

Guernsey County, Case No. 23 CA 000012 3

{¶5} On April 28, 2022, the State of Ohio Board of Pharmacy ("Pharmacy Board")

issued to Lynn an Ohio Medical Marijuana Control Program registry identification card

pursuant to R.C. Chapter 3796 and Ohio Adm.Code 3796.

{¶6} On April 5, 2023, Lynn, through counsel, filed a motion in the trial court

seeking a modification of his community control conditions such that he be allowed to

lawfully use medical marijuana while on community control. [Docket Entry No. 122]. By

Judgment Entry filed April 5, 2023, the trial judge scheduled Lynn’s motion for a non-oral

administrative review hearing on April 26, 2023. [Docket Entry No. 123]. The judge

instructed all parties that they need not appear; however, all pleadings/information that

the judge should consider should be filed and served on opposing counsel by the day of

the hearing.

{¶7} On April 24, 2023, Lynn, through counsel, filed a supplement to the

modification motion to record the fact that he timely renewed his registry identification

card. [Docket Entry No. 126]. On April 25, 2023, the state filed a response to Lynn’s

motion. [Docket Entry No. 127].

{¶8} On May 2, 2023, the trial court denied Lynn’s modification motion, stating,

“The Court, after review, finds [Lynn’s] motion should be and hereby is DENIED.”

Assignments of Error

{¶9} Lynn raises ten Assignments of Error,

{¶10} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT'S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER THE

Guernsey County, Case No. 23 CA 000012 4

CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF THE EIGHTH AMENDMENT TO

THE U.S. CONSTITUTION.

{¶11} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT'S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER THE

CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF OHIO CONSTITUTION, ARTICLE

I, SECTION 9.

{¶12} “III. THE TRIAL COURT'S ORDER DENYING DEFENDANT'S MOTION

TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH THAT DEFENDANT MAY

LAWFULLY USE MEDICAL MARIJUANA WHILE ON PROBATION FAILS THE

RATIONAL BASIS TEST AND, THEREFORE, THE DEFENDANT HAS THE RIGHT TO

DO SO UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE U.S. CONSTITUTION.

{¶13} “IV. THE TRIAL COURT'S ORDER DENYING DEFENDANT'S MOTION

TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH THAT DEFENDANT MAY

LAWFULLY USE MEDICAL MARIJUANA WHILE ON PROBATION FAILS THE

RATIONAL BASIS TEST AND, THEREFORE, THE DEFENDANT HAS THE RIGHT TO

DO SO UNDER THE EQUAL PROTECTION CLAUSE OF THE OHIO CONSTITUTION.

{¶14} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT'S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE FUNDAMENTAL FAIRNESS REQUIRES THAT HE BE

Guernsey County, Case No. 23 CA 000012 5

PERMITTED TO DO SO UNDER THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION.

{¶15} “VI. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT'S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE FUNDAMENTAL FAIRNESS REQUIRES THAT HE BE

PERMITTED TO DO SO UNDER THE DUE COURSE OF LAW CLAUSE OF OHIO

CONSTITUTION, ARTICLE I, SECTION 16.

{¶16} “VII. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT'S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER OHIO

CONSTITUTION, ARTICLE I, SECTION 21(B)'S RIGHT TO PURCHASE HEALTH

CARE.

{¶17} “VIII. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT'S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE COMMUNITY CONTROL SANCTION STATUTES (R.C.

2929.15 AND 2929.17) ARE UNCONSTITUTIONAL AS APPLIED TO THE

DEFENDANT.

{¶18} “IX. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT'S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

Guernsey County, Case No. 23 CA 000012 6

PROBATION BECAUSE THE TRIAL COURT'S SENTENCING ORDER VIOLATES THE

DEFENDANT'S STATUTORY RIGHT TO USE MEDICAL MARIJUANA PURSUANT TO

R.C. 3796.22(A) (1)

{¶19} “X. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING

DEFENDANT'S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE TRIAL COURT'S COMMUNITY CONTROL SANCTIONS

REGARDING MEDICAL MARIJUANA FAIL TO SATISFY ANY OF THE TALTY

FACTORS.”

X.

{¶20} Lynn challenges the trial judge’s refusal to allow him to use medical

marijuana while under community control sanctions on both constitutional and non-

constitutional grounds. It is well settled that we should not reach constitutional issues

unless absolutely necessary. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814

N.E.2d 1201; citing in re Miller, 63 Ohio St.3d 99, 110, 585 N.E.2d 396(1992); Hall China

Co. v. Pub. Util. Comm., 50 Ohio St.2d 206, 210, 4 O.O.3d 390, 364 N.E.2d 852(1977).

To determine the necessity of a constitutional analysis, therefore, we must first decide

whether Lynn’s non-constitutional arguments are dispositive.

{¶21} We will address Lynn’s Tenth Assignment of Error first because we find it

to be dispositive.

{¶22} In his Tenth Assignment of Error, Lynn maintains that the trial judge abused

his discretion when he denied Lynn’s request to be allowed to use medical marijuana

while under community control sanctions because the restriction is overly broad on non-

Guernsey County, Case No. 23 CA 000012 7

constitutional grounds in violation of State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888,

814 N.E.2d 1201. We agree.

Standard of Appellate Review

{¶23} R.C. 2929.15(A)(1) governs the authority of the trial court to impose

conditions of community control. We review the trial court’s imposition of community-

control sanctions under an abuse-of-discretion standard. State v. Talty, 103 Ohio St.3d

177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶10. This means courts must “consider whether

the condition (1) is reasonably related to rehabilitating the offender, (2) has some

relationship to the crime of which the offender was convicted, and (3) relates to conduct

which is criminal or reasonably related to future criminality and serves the statutory ends

of probation.” State v. Jones, 49 Ohio St.3d 51, 53, 550 N.E.2d 469(1990) (citations

omitted).

{¶24} “The requirement that a condition may not be overbroad is connected to the

reasonableness of a condition.” State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814

N.E.2d 1201, ¶ 14. The availability of “ready alternatives” is evidence that a condition is

unreasonable. Id. In short, “Jones stands for the proposition that probation conditions

must be reasonably related to the statutory ends of probation and must not be overbroad.

Because community control is the functional equivalent of probation, this proposition

applies with equal force to community-control sanctions.” Id. at ¶ 16. State v. Allen, 2nd

Dist. Clark No. 2023-CA-6, 2023-Ohio-3655, ¶ 42

{¶25} An abuse of discretion can be found where the reasons given by the court

for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or

where the judgment reaches an end or purpose not justified by reason and the evidence.

Guernsey County, Case No. 23 CA 000012 8

Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship

of S.H., 9th Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi,

5th Dist. Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54.

Issue for Appellate Review: Whether the trial judge’s decision not to allow Lynn

to use medical marijuana while under community control sanctions is clearly untenable,

legally incorrect, amounts to a denial of justice, or reaches an end or purpose not justified

by reason and the evidence

Medical Marijuana in Ohio

{¶26} In 2016, Ohio House Bill 523 legalized medical marijuana in Ohio and

created the Ohio Medical Marijuana Control Program, allowing people with certain

medical conditions, upon the recommendation of an Ohio-licensed physician, to purchase

and use medical marijuana. The Ohio Medical Marijuana Control Program is administered

by three state agencies: the Ohio Department of Commerce, State of Ohio Board of

Pharmacy, and the State Medical Board of Ohio. On January 16, 2019, four Ohio

dispensaries began selling medical marijuana to patients and caregivers. Today, patient

access to medical marijuana products continues to grow while the Department works to

build a sophisticated and mature medical marijuana regulatory framework. 1

{¶27} The Ohio Department of Commerce is tasked with licensing, administering,

monitoring, and developing and enforcing rules for medical marijuana cultivators,

processors, and testing laboratories. Additionally, the Department is responsible for

1 https://com.ohio.gov/divisions-and-programs/medical-marijuana-control-program/about-mmcp

(accessed Nov. 21, 2023).

Guernsey County, Case No. 23 CA 000012 9

implementing an electronic database for compliance monitoring and production control

from seed to sale in accordance with the Ohio Revised Code.2

{¶28} The State of Ohio Board of Pharmacy is responsible for the licensing and

regulation of dispensaries, and the registration of patients and caregivers.

{¶29} The Ohio State Medical Board is responsible for certifying physicians to

recommend medical marijuana and may add to the list of qualifying conditions for which

medical marijuana can be recommended.3

{¶30} Physicians interested in recommending the use of medical marijuana for

patients must apply for a certificate to recommend from the State Medical Board of Ohio.4

The requirements for a physician to obtain a certificate to recommend medical marijuana

are set forth in Ohio Adm.Code 4731-32-02. In addition, in order to practice within the

minimal standards of care when recommending treatment with medical marijuana,

physicians shall comply with the Standard of Care set forth in Ohio Adm.Code 4731-32-

03, which states, in part,

(A) The physician shall establish and maintain a bona fide physician-

patient relationship with the patient for the provision of medical services that

is established in an in-person visit that complies with this rule and for which

there is an expectation that the physician will provide care to the patient on

an ongoing basis.

2 See note 1.

3 See, Note 1.

4 https://medicalmarijuana.ohio.gov/physicians (accessed Nov. 21, 2023),

Guernsey County, Case No. 23 CA 000012 10

(B) The physician shall create and maintain a medical record that

documents the provision of medical services. The documentation shall

include all of the following:

(1) Patient’s name and date or dates of office visits or treatments;

(2) A description of the patient’s current medical condition;

(3) Documented assessment of the patient’s medical history,

including relevant prescription history and any history of substance use

disorder;

(4) Documented review of any available relevant diagnostic test

results;

(5) Documented review of prior treatment and the patient’s response

to the treatment;

(6) Documented review of the patient’s current medication to identify

possible drug interactions, including benzodiazepines and opioids.

(7) Documented review that standard medical treatment has been

attempted or considered. If standard medical treatment is not attempted,

the physician must document the reasons that standard medical treatment

is not appropriate for this patient;

(8) Based on evidence or behavioral indications of addiction or drug

abuse, the physician may obtain a drug screen on the patient. It is within

the physician’s discretion to decide the nature of the screen and which type

of drug to be screened;

Guernsey County, Case No. 23 CA 000012 11

(9) The physician’s performance of a physical examination relevant

to the patient’s current medical condition;

(10) The physician’s diagnosis of the patient’s medical condition; and

(11) If the patient has been previously diagnosed with a qualifying

medical condition as defined in section 3796.01 of the Revised Code, by a

physician licensed to practice medicine under section 4731.14 or 4731.29

of the Revised Code, the physician may confirm the diagnosis so long as

the physician obtains a copy of the medical records or a detailed written

summary indicating the diagnosis and the physician is satisfied that he or

she can rely on those records to confirm diagnosis of a qualifying condition.

The practitioner shall maintain a copy of any record or report of any

physician on which the physician relied for purposes of meeting the

requirements under this paragraph.

{¶31} Obtaining medical marijuana through Ohio’s Medical Marijuana Control

Program involves three steps:

Visit a certified physician who can confirm that you have one of the

medical conditions that qualify for medical marijuana and have the physician

create your profile in the Patient & Caregiver Registry.

Confirm and complete your registration for the program through the

Patient & Caregiver Registry.

Purchase medical marijuana from an Ohio dispensary with a

certificate of operation from the Board of Pharmacy5.

5 https://medicalmarijuana.ohio.gov/patients-caregivers (accessed Nov. 21, 2023)

Guernsey County, Case No. 23 CA 000012 12

{¶32} Patient and caregiver rules are governed by Ohio Adm.Code 3796:7-2-01

& 3796:7-2-02. The State of Ohio has created a Quick-reference Guide to obtaining

Medical Marijuana.6

{¶33} The State of Ohio Board of Pharmacy is responsible for:

Operating the patient and caregiver registry

Licensing of retail dispensaries

Licensing of dispensary employees

Managing the toll-free helpline

Approving new forms of medical marijuana

Reviewing and assigning product identifiers for medical marijuana

products7

{¶34} The “Qualifying medical conditions” for which medical marijuana can be

recommended are set forth in Ohio Adm.Code 3796.01(6).

How patients and caregivers lawfully obtain medical marijuana products

{¶35} Before a prospective patient may lawfully obtain medical marijuana, he must

first be placed on the Pharmacy Board's patient registry. See Ohio Adm.Code 3796:7-2-

01(A). To qualify for placement on the patient registry, a prospective patient must: (1)

establish and maintain a bona fide physician-patient relationship with the recommending

physician, (2) receive a diagnosis or confirmation of a "qualifying medical condition" from

the recommending physician, (3) consent to treatment with medical marijuana, (4) pay

6

https://medicalmarijuana.ohio.gov/Documents/PatientsCaregivers/How%20to%20Obtain%20Medical%20

Marijuana.pdf (accessed Nov. 21, 2023)

7https://com.ohio.gov/divisions-and-programs/medical-marijuana-control-program/about-

mmcp/pharmacy-board (accessed Nov. 21, 2023)

Guernsey County, Case No. 23 CA 000012 13

the required fee to the Pharmacy Board, and (5) be an Ohio resident or be subject to a

reciprocity agreement. See Ohio Adm.Code 3796:7-2-01 (B). To maintain one's patient

registry, the patient must renew annually with the Pharmacy Board.

{¶36} Patients and caregivers may purchase medical marijuana products only at

licensed dispensaries. See Ohio Adm. Code 3796:7-2-04(A). Patients and caregivers

must be over eighteen years old to purchase medical marijuana products. See Ohio

Adm.Code 3796:7-2-04(B). Patients and caregivers must show proof of identity (e.g., an

unexpired Ohio driver's license) and their registry identification card before entering a

dispensary or purchasing medical marijuana products. See Ohio Adm.Code 3796:7-2-

04(C)-(E). Patients and caregivers are also subject to several other restrictions, legal

duties, and obligations. See Ohio Adm.Code 3796:7-2-05.

Lawful forms of medical marijuana

{¶37} R.C. 3796.06(A) provides: "Only the following forms of medical marijuana

may be dispensed under this chapter: (1) Oils; (2) Tinctures; (3) Plant material; (4)

Edibles; (5) Patches; [and] (6) Any other form approved by the state board of pharmacy

under section 3796.061 of the Revised Code." "The smoking or combustion of medical

marijuana is prohibited." R.C. 3796.06(B)(1). "Any form [of medical marijuana] or method

[of consumption] that is considered attractive to children, as specified in rules adopted by

the [Pharmacy Board], is prohibited." R.C. 3796.06(C).

Freedom from arrest or prosecution

{¶38} R.C. 3796.22 mandates that qualifying individuals who obtain an Ohio

Medical Marijuana Control program registry identification card will not be arrested or

prosecuted for possessing or using medical marijuana,

Guernsey County, Case No. 23 CA 000012 14

(A) Notwithstanding any conflicting provision of the Revised Code, a

patient registered under this chapter who obtains medical marijuana from a

retail dispensary licensed under this chapter may do both of the following:

(1) Use medical marijuana;

(2) Possess medical marijuana, subject to division (B) of this section;

(3) Possess any paraphernalia or accessories specified in rules

adopted under section 3796.03 of the Revised Code.

(B) The amount of medical marijuana possessed by a registered

patient shall not exceed a ninety-day supply, as specified in rules adopted

under section 3796.03 of the Revised Code.

(C) A registered patient shall not be subject to arrest or criminal

prosecution for doing any of the following in accordance with this chapter:

(1) Obtaining, using, or possessing medical marijuana;

(2) Possessing any paraphernalia or accessories specified in rules

adopted under section 3796.03 of the Revised Code.

(D) This section does not authorize a registered patient to operate a

vehicle, streetcar, trackless trolley, watercraft, or aircraft while under the

influence of medical marijuana.

Emphasis added. Thus, by its express terms the Legislature has authorized citizens who

obtain an Ohio Medical Marijuana Control program registry identification card to use and

possess medical marijuana, and has furthered agreed not to arrest or prosecute any such

citizen for using and possessing medical marijuana. In other words, the statute renders

possession of marijuana noncriminal for a qualified patient. By analogy, the possession

Guernsey County, Case No. 23 CA 000012 15

and use of marijuana in accordance with the statutes and rules promulgated thereunder

is as lawful as the possession and acquisition of any prescription drug. City of Garden

Grove v. Superior Court, 68 Cal.Rptr.3d 656, 157 Cal.App.4th 355, 372(2008).

{¶39} We note that some states have found a probation term that threatens to

revoke community control for medical marijuana use or possession that complies with the

terms of the state’s medical marijuana law is unenforceable. See, Reed-Kaliher v.

Hoggatt, 237 Ariz. 119, 121, 347 P.3d 136 (2015); People v. Tilehkooh, 113 Cal.App.4th

1433, 7 Cal.Rptr.3d 226(2003), (the court held the [Medical marijuana Act] “provides a

defense to a probation revocation based on marijuana possession or use.” Id. at p. 1445,

7 Cal.Rptr.3d 226); City of Garden Grove v. Superior Court, 68 Cal.Rptr.3d 656, 157

Cal.App.4th 355 (2008). Similarly, the appellate courts in Oregon have held that

sentencing courts may not impose probation conditions that conflict with a defendant’s

rights under the Oregon Medical Marijuana Act. See, e.g., State v. Miller, 299 Or. App.

515, 516-517, 450 P.3d 578 (2019); State v. Rhamy, 294 Or. App. 784, 785, 431 P.3d

103 (2018); State v. Bowden, 292 Or. App. 815, 818-819, 425 P.3d 475 (2018).

{¶40} However, in those cases, the state’s medical marijuana statutes are much

broader than Ohio’s. For example, “a registered qualifying patient ... is not subject to

arrest, prosecution or penalty in any manner, or denial of any right or privilege, including

any civil penalty or disciplinary action by a court or occupational or professional licensing

board or bureau” for the patient’s “medical use of marijuana pursuant to [the act.]” See,

Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 347 P.3d 136, ¶8. (emphasis added).

{¶41} Courts in other states, such as Maine, California, and Michigan have

routinely held that a defendant's use of medical marijuana may be denied or restricted if

Guernsey County, Case No. 23 CA 000012 16

his or her conviction bears a logical relationship to potential drug use, such as possession

of controlled substance with or without the intent to distribute, sale of a controlled

substance, driving while intoxicated or ability impaired by drugs, and possession of a

firearm by a felon. See, United States v. Friel, 699 F.Supp.2d 328, 330 (D. Me. 2010),

[defendant who was convicted of possession of marijuana with intent to distribute and

possession of a firearm was not permitted to use medical marijuana while on probation];

People v. Magyari, 2017 WL 127744 (Mich Ct. App. Jan. 12, 2017)[defendant who was

convicted of driving while intoxicated and driving without a valid license was not permitted

use of medical marijuana while on probation]. People v. Stanton, 60 Misc.3d 1020, 1025,

80 N.Y.S.3d 888, 892 (2018). These states are more in line with the Ohio Supreme

Court’s decision in Talty.

{¶42} There is no dispute that Lynn possessed a valid Ohio Medical Marijuana

Control program registry identification card issued by the Ohio State Board of Pharmacy

pursuant to R.C. 3796 et seq. and Ohio Adm.Code 3796 et seq. This establishes that

Lynn has a “qualifying medical condition” within the meaning of R.C. 3796.01(A)(6). It

further establishes that Lynn has established and maintained a bona fide physician-

patient relationship with the recommending physician, (ii) received a diagnosis or

confirmation of a "qualifying medical condition" from the recommending physician, (iii)

consented to treatment with medical marijuana, (iv) [paid] the required fee to the

Pharmacy Board, and (v) [is] an Ohio resident or be subject to a reciprocity agreement.

See Ohio Adm.Code 3796:7-2-01(B). In addition, the fact that Lynn had a valid program

registry identification card establishes that Lynn obtained a recommendation from a

physician who holds a certificate to recommend marijuana from the State of Ohio Medical

Guernsey County, Case No. 23 CA 000012 17

Board and who has complied with the appropriate criteria for issuing the

re commenda t ion. See R.C. 4731.30(B)(2); See R.C. 4731.30(C)(1); Ohio Adm.Code

4731-32-03 (Standard of care).

The Talty requirements for community control sanction conditions

(1) Is the condition reasonably related to rehabilitating Lynn

{¶43} Lynn had a medical marijuana registration card. There is no indication that

Lynn has used marijuana in violation of the act since obtaining the card. A person’s use

of medical marijuana that otherwise complies with the terms of the law is not illegal.

{¶44} As one court has observed, “The Defendant is a qualifying patient of

medical marijuana pursuant to New York Public Health Law, and has a valid prescription

for medical marijuana from a licensed physician associated with the New York State

Medical Marijuana Program. Prohibiting medical marijuana in this case would hardly

serve any lawful and logical relation to the Defendant’s rehabilitation.” People v. Stanton,

80 N.Y.S.3d 888, 892-893, 2018 N.Y. Slip. Op. 28221, 60 Misc.3d 1020, 1026 (2018).

{¶45} In other words, “A rehabilitative purpose is not served when the probation

condition proscribes the lawful use of marijuana for medical purposes pursuant to section

11362.5 any more than it is served by the lawful use of a prescription drug.” People v.

Tilehkooh, 113 Cal.App.4th 1433, 1444, 7 Cal.Rptr.3d 226 (2003).

{¶46} The state’s citation to State v. Hutching, 8th Dist. Cuyahoga No. 100735,

2014-Ohio-4675 is not dispositive. In that case, the appellant raised only constitutional

challenges to the prohibition against the use of medical marijuana. The appellant did not

raise non-constitutional grounds for invalidating the provision, nor did the Court of

Appeals address the challenge as overbroad under Talty.

Guernsey County, Case No. 23 CA 000012 18

(2) Does the condition have some relationship to the crime of which the

offender was convicted

{¶47} In State v. Dahlberg, 11th Dist. Ashtabula No. 2020-A-0030, 2021-Ohio-

550, the court held that the trial court had discretion to include prohibiting marijuana, even

if legalized. Id. at ¶ 82-83. The court found a clear relationship with the various criminal

offenses that were committed (drug use and illegal firearms in a motor vehicle) and that

it was “necessary for the court to take into consideration known drug use in fashioning a

sentence that would ‘rehabilitate the offender’ and prevent future crime.” Id. at ¶ 83; State

v. Bourne, 11th Dist. Geauga No. 2023-G-0003, 2023-Ohio-2832, ¶ 29. Similarly, in State

v. Ryan, 11th Dist. Lake No. 2021-L-032, 2021-Ohio-4059, the court found “it is clear that

prohibiting [the appellant] from using marijuana or having it under his control is reasonably

related to rehabilitation, the crimes he committed, and serves the ends of probation, i.e.,

[the appellant] pleaded guilty to trafficking in drugs and aggravated possession of drugs.”

Id. at ¶ 34. In addition, the trial court's restrictions were acknowledged and agreed to by

the appellant despite the possession of an active medical marijuana card at the time of

his sentencing. Id. at ¶ 32; State v. Bourne, 11th Dist. Geauga No. 2023-G-0003, 2023-

Ohio-2832, ¶ 30.

{¶48} In State v. McQuade, 8th Dist. Cuyahoga No. 112158, 2023-Ohio-1483, the

court invalidated a condition imposed on the defendant by the trial court that he abstains

from using alcohol while on community control. The Court of Appeals reasoned,

As is true in the instant case, the record in [State v.] Mahon, [8th Dist.

Cuyahoga No. 106043, 2018-Ohio-295] “contain[ed] no mention

whatsoever of drugs or alcohol having been involved in the incident for

Guernsey County, Case No. 23 CA 000012 19

which Mahon was convicted.” Id. at ¶ 11. As is also true in the instant case,

there was no indication that Mahon had a history of alcohol or drug abuse

“that could possibly support the trial court's desire to rehabilitate” Mahon.

Id. Thus, the record in the instant case supports that the trial court abused

its discretion when it imposed the drug and alcohol community control-

conditions.

State v. McQuade, 8th Dist. Cuyahoga No. 112158, 2023-Ohio-1483, ¶ 16. Several Ohio

courts have required some nexus between an offender's crime and drug or alcohol abuse

in order to uphold an alcohol-related community-control condition. State v. Mahon, 8th

Dist. Cuyahoga No. 106043, 2018-Ohio-295, ¶ 9, citing Strongsville v. Feliciano, 8th Dist.

Cuyahoga No. 96294, 2011-Ohio-5394 (finding the trial court abused its discretion in

ordering defendant to have a drug and alcohol assessment and random drug and alcohol

testing where the record is devoid of any mention of drugs or alcohol involvement); State

v. Chavers, 9th Dist. Wayne No. 04CA0022, 2005-Ohio-714 (finding an abuse of

discretion in ordering defendant not to consume alcohol or visit a bar that serves alcohol

where nothing in the record indicated that alcohol was involved in the crime or the

offender's past criminal history); State v. Wooten, 10th Dist. Franklin No. 03AP-546, 2003-

Ohio-7159 (finding an abuse of discretion in requiring defendant to undergo drug

assessment, possess no alcohol, and submit to random urinalysis where record lacked

evidence linking offender's connection to drugs or alcohol); State v. Brown, 8th Dist.

Cuyahoga No. 111173, 2022-Ohio-3233, ¶ 12.

{¶49} In the case at bar, Lynn’s conviction is for Attempted Felonious Assault, a

felony of the third degree. [Docket Entry Nos. 97; 106]. The state points to nothing in the

Guernsey County, Case No. 23 CA 000012 20

record to indicate that drugs or alcohol were involved in the offense. A single past

conviction for an offense involving alcohol is not justification for denying Lynn’s use of

medical marijuana in accordance with the law.

{¶50} The probationary condition of not using medical marijuana in this case does

not have an obvious relationship to the crimes for which Lynn was convicted.

(3) Does the condition relate to conduct which is criminal or reasonably

related to future criminality and serve the statutory ends of probation

{¶51} The Legislature has allowed Ohio citizens to use and possess medical

marijuana, and has further agreed not to arrest or prosecute any Ohio citizen for using

and possessing medical marijuana in accordance with the medical marijuana laws and

regulations. The statute renders possession and use of marijuana noncriminal for a

qualified patient using in accordance with the law.

{¶52} The absolute ban on using drugs, without making exceptions for lawful,

medical marijuana use does not reasonably serve the ends of community control. The

goals of community control readily may be served by imposing an alternative restriction.

{¶53} We note that the medical marijuana law is not applicable to the recreational

use of marijuana, and thus, a trial court may impose probation conditions related to the

recreational use of marijuana and revoke probation for such recreational use as well as

for marijuana use in violation of the medical marijuana statues and regulations. Certainly,

judges and probation officials may make reasonable inquiries into the lawfulness of a

probationer’s use of medical marijuana. Gass v. 52nd Judicial District, Lebanon County,

659 Pa. 590, 605, 232 A.3d 706, 715(2020). Moreover, just as a sentencing court may

impose a condition that prohibits a defendant from abusing lawfully-obtained prescription

Guernsey County, Case No. 23 CA 000012 21

drugs, so may a court prohibit a defendant from abusing medical marijuana. Further, a

sentencing court is free to impose limitations on the place of use that are reasonable.

{¶54} For the foregoing reasons, we hold that the absolute ban on using medical

marijuana while on community control sanctions is overbroad under the facts of this case.

{¶55} Given our disposition, we need not address Lynn’s constitutional and

remaining non-constitutional challenges to the condition. State v. Talty, 103 Ohio St.3d

177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶25. Accordingly, we reverse the judgment of

the trial court absolutely denying Lynn the right to use medical marijuana while under

community control sanctions. We note that Lynn must produce a current, valid, Ohio

Medical Marijuana Control program registry identification card before the trial judge may

permit him to use medical marijuana while under community control sanctions.

{¶56} The judgment of the Guernsey County Court of Common Pleas is reversed

and we remand the case to the trial court for further proceedings consistent with this

opinion.

By Gwin, P.J.,

Delaney, J., and

King, J., concur