[Cite as State v. Butler, 2026-Ohio-3585.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2026-P-0001
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
JERRY C. BUTLER,
Trial Court No. 2025 CR 00122
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Decided: September 14, 2026
Judgment: Affirmed
Connie J. Lewandowski, Portage County Prosecutor, and Timothy P. Bogner, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Thomas I. Perotti, Perotti Law Offices, L.L.C., 147 Bell Street, Suite 200, Chagrin Falls, OH 44022 (For Defendant-Appellant).
EUGENE A. LUCCI, J.
{¶1} Appellant, Jerry C. Butler, appeals the judgment of the Portage County
Court of Common Pleas, convicting him, after he entered a plea of guilty to felony-four
failure to comply with the order or signal of a police officer, in violation of R.C. 2921.331.
Mr. Butler was subsequently referred to the adult probation department for an intervention
in lieu of conviction (“ILC”) evaluation. After a sentencing hearing, Mr. Butler was
sentenced to two years’ probation with various conditions. The issues in this matter are
(1) whether the trial court erred in accepting Mr. Butler’s guilty plea before referring him
for an ILC assessment which, in Mr. Butler’s view, rendered his guilty plea invalid, and (2) whether the trial court erred, as a matter of law, when it allegedly ruled the offense to
which Mr. Butler pleaded guilty was not an eligible offense under the ILC statutory
scheme. Regarding the first issue, we conclude the trial court did not err; as to the second
issue, we conclude the trial court did not enter a specific judgment regarding eligibility,
and thus the hypothetical issue is moot. The judgment of the trial court is therefore
affirmed.
{¶2} On February 13, 2025, Mr. Butler was indicted on one count of failure to
comply with the order or signal of a police officer, a felony of the fourth degree, in violation
of R.C. 2921.331; obstructing official business, a misdemeanor of the second degree, in
violation of R.C. 2921.31; and criminal trespass, a misdemeanor of the fourth degree, in
violation of R.C. 2911.21. He pleaded not guilty to the charges.
{¶3} On August 6, 2025, Mr. Butler signed a written plea agreement to the felonyfour failure-to-comply charge.1 The matter proceeded to a plea hearing. At the plea
hearing, the State indicated it did not object to Mr. Butler being reviewed for ILC. Defense
counsel observed that Mr. Butler intended to enter a plea of guilty but ostensibly agreed
to the assessment.
{¶4} The State noted that there were no issues of drugs or alcohol involved in
the matter. Specifically, the prosecutor pointed out that “we just believe he was having a
bad mental health day which caused him to make the choices he did and if he seeks
treatment for that and gets some insight into why he acted the way he did, we feel he
would be a good candidate for ILC.” Defense counsel requested the court set the matter
for status conference and allow Mr. Butler to be assessed by a mental health facility. No
1. The docket indicates the plea agreement was time-stamped on August 7, 2025; the record indicates, however, the written agreement and the plea hearing occurred on August 6, 2025.
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formal motion or request was filed on Mr. Butler’s behalf regarding ILC prior to or at the
time of the plea hearing. The trial court accordingly ordered that the matter be referred to
adult probation for an ILC evaluation and report. No objection was advanced regarding
the referral, and Mr. Butler did not seek a stay of proceedings in light of the referral. To
the contrary, Mr. Butler represented (expressly and via counsel) that he was poised to
accept the State’s plea offer at that time.
{¶5} Given the parties’ statements, the trial court conducted a complete plea
hearing. The trial court advised Mr. Butler of the various rights he would be waiving if it
were to accept the plea of guilty, and Mr. Butler stated he understood his waivers. The
trial court stated that “even though I am going to follow the recommendation and have
you assessed for [ILC], if I choose today, I could proceed to sentence you to eighteen
months in prison, do you understand that?” Mr. Butler responded in the affirmative.
{¶6} The trial court, after fully advising Mr. Butler of the rights he was waiving,
determined he knowingly, voluntarily, and intelligently entered into the plea of guilty. The
trial court then referred the matter to adult probation so an “ILC assessment” would be
completed within 30 days.
{¶7} Approximately six weeks later, on October 20, 2025, Mr. Butler filed a
“request for [ILC] and time waiver [pursuant to] R.C. 2951.041.” In the motion, Mr. Butler
stated that, under R.C. 2951.041, “alcohol and drug usage, mental illness, intellectual
disability, was a factor leading to the criminal behavior charged.” Mr. Butler accordingly
(and notwithstanding his plea of guilty) waived his “right to a speedy trial, a public jury trial
as guaranteed by the United States Constitution, the Ohio Constitution, and R.C. 2945.71,
et seq.”
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{¶8} On October 29, 2025, the State filed a bench memorandum regarding “ILC
on failure to comply,” essentially withdrawing its previous recommendation that Mr. Butler
would be a “good candidate” for ILC. The State argued that, pursuant to R.C.
2951.041(B)(10), Mr. Butler would be ineligible for ILC because he was charged with an
offense that would disqualify him “from operating a commercial motor vehicle . . . .” Id.
The State cited State v. Schneider, 2025-Ohio-4625 (12th Dist.), wherein the appellate
court determined that a violation of failure to comply, under R.C. 2921.331, disqualifies
an individual from participating in an ILC program. Schneider at ¶ 10.2
{¶9} The matter proceeded to sentencing on December 9, 2025. During
sentencing, the trial court indicated it had received Mr. Butler’s ILC assessment. Prior to
ruling on the ILC issue, however, Mr. Butler withdrew his request for ILC. Defense counsel
specifically stated that “after copious talks with my client . . . I have to withdraw my motion
for ILC.” The trial court accepted defense counsel’s withdrawal and confirmed that Mr.
Butler had nothing to add regarding the withdrawal or the court proceeding to sentencing.
{¶10} The trial court ordered Mr. Butler to serve two years’ probation; that he
engage in a mental health assessment through Stepping Stone and follow any
recommendations; that he attend counseling “actively”; that he complete anger
management; that his driver’s license be suspended for three years, retroactive to the
2. It is unclear whether the defendant in Schneider possessed a license to operate a commercial motor vehicle. Instead, the analysis was peremptory such that the charge under R.C. 2921.331 would necessitate the option of even applying for such a license. And, although we do not have the benefit of the defendant’s appellate brief in Schneider, the Twelfth District observed “[t]here is nothing ‘premature’ or speculative about the trial court’s decision as Schneider suggested in her appellate brief. The trial court, just like this court on appeal, applied the plain language of the statutes involved.” Id. at ¶ 11. Accordingly, under Schneider, it would appear that the actual possession of a CDL or other commercial motor vehicle license is irrelevant to the extent that the charged offense of failure to comply would be a disqualifying offense. This note is merely informational because, as will be discussed below, the legal merits of this point are not before this court in the instant matter.
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date of arrest; that he be screened for drug and alcohol issues; that he refrain from
consuming alcohol, illegal drugs, or marijuana; and that he pay court costs. This appeal
follows.
{¶11} Mr. Butler assigns two errors for this court’s review. His first provides:
{¶12} “The trial court erred as a matter of law when it accepted a guilty plea before
referring defendant for an ILC assessment.”
{¶13} Under this assignment of error, Mr. Butler argues that once a court accepts
a request for ILC, an eligibility hearing must follow and all criminal proceedings must be
stayed under R.C. 2951.041. He claims that the trial court reversed or inverted the order
of the proper procedure by first accepting his guilty plea and then referring the matter to
adult probation for ILC eligibility. Mr. Butler therefore argues that his guilty plea was not
entered “knowingly and voluntarily” because it occurred before any eligibility hearing. We
do not agree with Mr. Butler’s position.
{¶14} “Because a . . . guilty plea involves a waiver of constitutional rights, a
defendant’s decision to enter a plea must be knowing, intelligent, and voluntary.”
(Citations omitted.) State v. Dangler, 2020-Ohio-2765, ¶ 10. If a guilty plea was not
entered knowingly, intelligently, and voluntarily, “enforcement of that plea is
unconstitutional.” (Citations omitted.) Id.
{¶15} When a criminal defendant seeks to have his or her conviction reversed on
appeal, the general rule requires that the alleged error occurred in the trial-court
proceedings and that he or she was prejudiced by that error. Id. at ¶ 13. The Supreme
Court of Ohio has established a limited exception to the prejudice component of that rule
in the context of a plea of guilty in a criminal matter. Id. at ¶ 14. “When a trial court fails
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to explain the constitutional rights that a defendant waives by pleading guilty or no contest,
we presume that the plea was entered involuntarily and unknowingly, and no showing of
prejudice is required.” Id., citing State v. Clark, 2008-Ohio-3748, ¶ 31.
{¶16} The Court has also set forth an “additional exception to the prejudice
requirement: a trial court’s complete failure to comply with a portion of Crim.R.
11(C) eliminates the defendant’s burden to show prejudice.” Danglerat ¶ 15, citing State
v. Sarkozy, 2008-Ohio-509, ¶ 22. (In Sarkozy, the Court determined the trial court had
wholly failed to comply with Crim.R. 11(C)(2)(a)’s mandate that it explain the maximum
penalty when the court made no mention of postrelease control in the plea colloquy,
despite the fact the defendant was subject to a mandatory five years of postrelease
control.)
{¶17} Beyond these narrow exceptions, “the traditional rule continues to apply: a
defendant is not entitled to have his plea vacated unless he [or she] demonstrates he was
prejudiced by a failure of the trial court to comply with the provisions of Crim.R. 11(C).”
Dangler, 2020-Ohio-2765, at ¶ 16. In Dangler at ¶ 17, the Court clarified the analysis a
reviewing court should apply when the issue of the validity of a defendant’s plea of guilty
is before the appellate court. Specifically, the Court determined:
Properly understood, the questions to be answered are
simply: (1) has the trial court complied with the relevant
provision of the rule? (2) if the court has not complied fully with
the rule, is the purported failure of a type that excuses a
defendant from the burden of demonstrating prejudice? and
(3) if a showing of prejudice is required, has the defendant met
that burden?
{¶18} We conclude the trial court fully complied with the rule and Mr. Butler, in
view of his specific contentions on appeal, has failed to establish prejudice.
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{¶19} Initially, trial counsel advised the trial court that Mr. Butler was submitting a
“knowing and voluntary guilty plea.” Consistent with Crim.R. 11, the trial court advised Mr.
Butler of each constitutional right he was waiving and engaged in a colloquy
demonstrating Mr. Butler understood the waiver.3 The trial court also advised Mr. Butler
of each so-called “non-constitutional” right (i.e., he was informed of the maximum possible
penalty, the nature of the charges, and the effect of the plea) that are involved in entering
his plea of guilty. The trial court therefore complied.
{¶20} Mr. Butler does not dispute the trial court’s compliance in these respects.
Instead, he appears to argue his plea was invalid because the trial court may have
(implicitly) promised to find him eligible and permit him to participate in an ILC program
OR that the trial court’s acceptance of his guilty plea prior to conducting an ILC eligibility
hearing somehow affected his entry of the plea. This court considers both arguments
meritless.
{¶21} ILC “'is a statutory creation that allows a trial court to stay a criminal
proceeding and order an offender to a period of rehabilitation if the court has reason to
believe that drug or alcohol usage[, or that the offender had a mental illness or other
qualifying circumstance,] was a factor leading to the offense.’” State v. Dawson, 2017-Ohio-2833, ¶ 11 (9th Dist.), quoting State v. Massien, 2010-Ohio-1864, ¶ 9,
citing R.C. 2951.041(A)(1). R.C. 2951.041(A)(1) states:
If the court elects to consider an offender’s request . . ., the
court shall conduct a hearing to determine whether the
offender is eligible under this section for [ILC] and shall stay
3. Pursuant to Crim.R. 11(C)(2)(c), the trial court must inform and determine that a “defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.”
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all criminal proceedings pending the outcome of the hearing.
If the court schedules a hearing, the court shall order an
assessment of the offender for the purpose of determining the
offender’s program eligibility for [ILC] and recommending an
appropriate intervention plan.
{¶22} Pursuant to R.C. 2951.041(A)(1), however, a court may deny a request for
intervention in lieu of conviction without a hearing. State v. Cebula, 2014-Ohio-3276, ¶ 17
(11th Dist.); see also State v. Leisten, 2006-Ohio-2362, ¶ 6 (2d Dist.). If the court instead
elects to consider the request, the court must conduct a hearing to determine whether the
offender meets all of the eligibility requirements in R.C. 2951.041(B) for intervention in
lieu of conviction. Cebula at ¶ 17.
{¶23} Considering these points, a stay of criminal proceedings is triggered upon
the trial court’s election to “consider the request . . .[,]” hold a hearing, and order an
assessment of the offender to determine his or her eligibility. R.C. 2951.041(A).4
{¶24} Here, we emphasize that no formal request or motion (either oral or written)
was made before the court on Mr. Butler’s behalf prior to the plea hearing. See R.C.
2951.041(A)(1) (indicating that an offender’s request must be submitted prior to the entry
of a guilty plea). While we recognize the State, via the prosecuting attorney, indicated it
did not object to the possibility of Mr. Butler receiving ILC and defense counsel
acquiesced to the State’s point, stating that counsel “had a chance to discuss this with
[his] client and that is a knowing and voluntary guilty plea and we would respectfully ask
for the court to set it for status, giving him enough time to go to the Coleman Center and
get assessed.”
4. R.C. 2951.041 has been amended several times after the release of Leisten and Cebula. The procedural points, however, are still valid.
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{¶25} Under the circumstances, defense counsel (not unreasonably) appeared to
agree with the State, after consulting with Mr. Butler, that an evaluation was appropriate;
still, the record reflects that Mr. Butler was interested in going forward with the guilty-plea
hearing and, as a result, was voluntarily interested in accepting the State’s plea offer.
{¶26} Moreover, it bears emphasis that Mr. Butler filed his formal request for ILC
and time waiver on October 20, 2025. This request was filed well after the plea hearing
occurred.
{¶27} Over forty years ago, this court observed that “‘[a]n eligibility hearing on an
offender’s request for treatment in lieu of conviction . . . is mandatory only if the request
comes before entry of a plea.’” (Emphasis added.) State v. Eisnaugle, 1984 WL 6477, *3
(11th Dist.), quoting State v. Lampkin, 3 Ohio App.3d 341, 341 (8th Dist.). Because no
formal motion was before the trial court when Mr. Butler knowingly and voluntarily entered
his plea, and no assessment regarding Mr. Butler’s potential eligibility for ILC had taken
place, we maintain that holding an eligibility hearing before the guilty-plea proceedings
would make little sense. We discern no reason to depart from the simple, procedural legal
point announced and followed by this court in Eisnaugle.
{¶28} Moreover, the language of R.C. 2951.041, the ILC statute, does not, on its
face, concern or impact an otherwise valid guilty plea. Even though the statute provides
that when a court “elects to consider an offender’s request . . . [the court] shall stay all
criminal proceedings pending the outcome of the hearing[,]” this does not imply that a
court’s referral to a treatment clinic, at the State’s mere “yielding” to such a request,
requires a stay of plea proceedings. R.C. 2951.041(A). This is especially true where no
formal motion or request has been filed prior to or during the proceedings by a defendant
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and the defendant has represented that he or she wishes to knowingly and voluntarily
enter a guilty plea in light of the foreseeable evaluation.
{¶29} Finally, we point out that, even though Mr. Butler’s withdrawal of the ILC
request occurred after the trial court’s acceptance of his guilty plea, the withdrawal implies
Mr. Butler was comfortable with and accepted, knowingly, voluntarily, and intelligently,
the guilty plea into which he entered. Specifically, Mr. Butler’s decision not to object to the
withdrawal, question the withdrawal, or exercise his right of allocution pertaining to the
withdrawal of the ILC request, provides a compelling foundation for the conclusion that
his decision to enter the guilty plea was not affected by the possibility of ILC eligibility. In
this respect, we cannot conclude that the lack of ILC participation was instrumental or
sine qua non for entering his plea of guilty.5
{¶30} We hold Mr. Butler’s plea of guilty is valid. And to the extent Mr. Butler
claims his guilty plea was not knowing, intelligent, and voluntary due to the trial court’s
procedural sequence, his argument is meritless.
{¶31} Mr. Butler’s second assignment of error provides:
{¶32} “The trial court erred as a matter of law when it ruled that R.C. 2921.331
was an offense that rendered defendant ineligible for ILC.”
{¶33} We need not engage in an in-depth discussion of Mr. Butler’s argument
under his second assignment of error because the trial court did not actually make a
formal ruling that he was ineligible for ILC. As noted above, at sentencing, Mr. Butler
withdrew his request for ILC and, as a result, any issue pertaining to eligibility was no
5. We recognize that Mr. Butler appears to assert that he withdrew the ILC request because the trial court indicated (during an off-record sidebar) that it intended to find he was ineligible for ILC, pursuant to R.C. 2951.041(B)(10) (because he was charged with an offense that would disqualify him “from operating a commercial motor vehicle . . . .”). This characterization, however, is not of record.
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longer a matter in controversy. In effect, Mr. Butler voluntarily waived any argument
pertaining to ILC. United States v. Olano, 507 U.S. 725, 733 (1993), quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938) (“[W]aiver is the ‘intentional relinquishment or
abandonment of a known right.’”).
{¶34} Further, the suspension at issue is an independent, mandatory
consequence of Mr. Butler’s conviction under R.C. 2921.331(E). The suspension
attached by operation of law, regardless of any possible ineligibility or other
disqualification issues. “‘Pursuant to R.C. 2921.331(E), a charge of fourth-degree felony
failure to comply with the order or signal of a police officer in violation
of R.C. 2921.331(B) includes a requirement that the trial court suspend the offender’s
driver’s license for a period of three years to life.’” State v. Pettigrew, 2026-Ohio-2312, ¶
17 (2d Dist.), quoting Schneider, 2025-Ohio-4625, ¶ 9-10 (12th Dist.). Even if the trial
court ruled on the matter, no ruling from this court could afford Mr. Butler relief from the
same. In short, because Mr. Butler’s withdrew his ILC request and stands convicted, any
challenge to his eligibility can afford him no relief and is rendered moot.
{¶35} “The doctrine of mootness is rooted both in the ‘case’ or ‘controversy’
language of Section 2, Article III of the United States Constitution and in the general
notion of judicial restraint.” (Citation omitted.) James A. Keller, Inc. v. Flaherty, 74 Ohio
App.3d 788, 791 (10th Dist. 1991). Ohio has no constitutional counterpart to Section 2,
Article III. Id. Nevertheless, “‘“[t]he duty of [the court] . . . is to decide actual controversies
by a judgment which can be carried into effect, and not to give opinions
upon moot questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.”’” Empaco Equip. Corp. v.
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Maximus Consulting, L.L.C., 2015-Ohio-1801, ¶ 5 (9th Dist.), quoting Miner v. Witt, 82
Ohio St. 237, 238 (1910), quoting Mills v. Green, 159 U.S. 651, 653 (1895). “In other
words, an issue is moot when it has no practical significance, being instead
merely hypothetical or academic.” In re Guardianship of Weller, 2011-Ohio-5816, ¶ 7 (2d
Dist.).
{¶36} Considering these points, “it is well established that courts do not have
jurisdiction to consider moot issues; rather, courts decide actual cases in controversy.”
(Citation omitted.) Deluca v. Aurora, 144 Ohio App.3d 501, 508 (11th Dist. 2001). A case
is moot “when an event occurs that renders it impossible for the court to grant the
requested relief” because “under such circumstances, there is no longer a ‘live’ issue that
demands resolution.” Ohio Renal Assn. v. Kidney Dialysis Patient Protection Amendment
Committee, 2018-Ohio-3220, ¶ 12; see also Los Angeles Cty. v. Davis, 440 U.S. 625, 631
(1979). “‘It is not the duty of [a] court to answer moot questions . . . .’” State ex rel. Gaylor,
Inc. v. Goodenow, 2010-Ohio-1844, ¶ 10, quoting Miner at syllabus (“It is not the duty of
the court to answer moot questions, and when, pending proceedings in error in this court,
an event occurs without the fault of either party, which renders it impossible for the court
to grant any relief, it will dismiss the [action].”).
{¶37} Here, because Mr. Butler withdrew his request for ILC, any issue of eligibility
of the same is moot. There is no case in controversy because he voluntarily withdrew his
request and the trial court did not issue a ruling on the issue of eligibility. It therefore
follows “when there is ‘no case in controversy, there will be no appellate review [of the
issue advanced].’” State ex rel. Evans v. Mohr, 2018-Ohio-5089, ¶ 5, quoting Adkins v.
McFaul, 1996-Ohio-388, ¶ 3 (1996). “Ordinarily when there is no case in controversy,
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there will be no appellate review unless the underlying legal issue is capable of repetition
yet evading review.” Id., ¶ 1, citing State v. Bistricky, 51 Ohio St.3d 157, 158-159 . . .;
State ex rel. Fenley v. Kyger, 72 Ohio St.3d 164, 165 (1995). Here, there is nothing to
review. See also, State v. Bishop, 2018-Ohio-5132, ¶ 27.
{¶38} The trial court accepted Mr. Butler’s request without issuing a judgment or
final order on eligibility (or lack thereof). Indeed, in its final judgment on sentence, the trial
court stated it granted Mr. Butler’s “motion” to withdraw his request for ILC. Because there
is no judgment relating to eligibility, there is no judgment upon which relief can be granted.
The issue is therefore moot.
{¶39} Mr. Butler’s second assignment of error is moot, and we accordingly decline
to address the same.
{¶40} The judgment of the Portage County Court of Common Pleas is affirmed.
MATT LYNCH, P.J.,
SCOTT LYNCH, J.,
concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this court, appellant’s first assignment of
error is without merit, and his second assignment of error is rendered moot. It is the
judgment and order of this court that the judgment of the Portage County Court of
Common Pleas is affirmed.
Costs to be taxed against appellant.
JUDGE EUGENE A. LUCCI
PRESIDING JUDGE MATT LYNCH,
concurs
JUDGE SCOTT LYNCH,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate
pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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