Brian L. Sipos is appealing from the denial by the trial court of his "Petition Seeking Hearing Mandated Under R.C.2951.04(B)." He sought a hearing for a determination of the eligibility for treatment in lieu of conviction.

Sipos had been convicted on June 18, 1997, of three counts of theft and five counts of forgery, after he had entered a no contest plea. He took no appeal from that judgment.

Subsequently, over one year later, Sipos filed his motion for a hearing, as stated above. The court overruled the motion "because the Defendant has already been adjudicated as guilty in the above captioned case. . . ." On appeal, Sipos, pro se, does not state an assignment of error, as such, but in his brief he simply argues that the trial court was wrong in not granting him a hearing on his "petition."

The law is clear, however, that an offender's request for treatment in lieu of conviction must be made prior to the entry of a plea. R.C. 2951.041 (A). Moreover, it is not contested that Sipos was a repeat offender, having previously been convicted of forgery in 1991 and also in 1990, and had served time. Thus, he would not have been eligible for treatment in lieu of imprisonment, much less a hearing, since he is a repeat offender. R.C. 2951.041 (B)(4).

The argument that the trial court erred is overruled, and the judgment is affirmed.

BROGAN, J., concurs.

I agree that the judgment should be affirmed. My reasoning, however, differs from that of the majority.

Sipos complains that the trial court incorrectly treated his petition as one for treatment in lieu of conviction made pursuant to R.C. 2951.041. This is a valid complaint, even though the trial court correctly ruled that he was ineligible for treatment in lieu of conviction. The petition clearly relied on R.C. 2951.04 — styled "conditional probation for treatment and rehabilitation of drug dependent persons" — and discussed his desire for "conditional probation" in his memorandum in support of his petition. Conditional probation is not treatment in lieu of conviction.

Although the State contends, and the majority agrees, that Sipos is a "repeat offender" as an additional reason that Sipos is ineligible for treatment in lieu of conviction, the record suggests only that he is prima facie a repeat offender. See R.C. 2935.36(E)(1), State v. Riley (1993), 87 Ohio App.3d 420,424; State v. Shackleford (Aug. 31, 1990), Montgomery App. No. 11666, unreported. Indeed, paragraph 17 of Sipos' no contest petition stated that he was eligible for a community control sanction instead of a prison term.

Nevertheless, R.C. 2951.04 was repealed effective July 1, 1996, well before the operative events of this case, so that the petition would have been properly denied for that reason.

Accordingly, I concur in the judgment of affirmance.

Copies mailed to:

Robert K. Hendrix Brian L. Sipos Hon. Thomas M. Rose