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Portage County trial court partially overturns nurse’s drug sentence

TRACEY BLAIR
Legal News Reporter

Published: February 21, 2019

A Portage County trial court exceeded the scope of its authority by ordering the forfeiture of a drug defendant’s nursing license, the 11th District Court of Appeals recently ruled.

Jennifer Fontana, a registered nurse and nurse practitioner, was charged with 15 felony counts for illegal processing of drug documents. She pleaded guilty to six fourth-degree felonies and two fifth-degree felonies and moved for intervention in lieu of conviction. The trial court found her eligible, but denied the motion and sentenced her to community control sanctions, including forfeiture of her nursing license.

Fontana, who claimed she suffers severe pain due to multiple sclerosis, wrote prescriptions for opioids – allegedly for her mother to use personally.

On appeal, Fontana claimed the trial court committed unfair prejudicial error and violated her due process right to a hearing before the State Nursing Board when ordering the forfeiture as a condition of probation or as a part of the sentence.

The state used two cases to support its claim that forfeiture of her license is an allowed form of community control. In State v. Graham (91, Ohio App.3d 751, 633 N.E.2d 622), a 1993 12th District case, an accountant pleaded guilty to securities violations. The 12th District upheld the trial court’s order that he not offer accounting services during his probation, finding it reasonably related to his crimes and rehabilitation.

The other case, Strongsville v. Starek (8th Dist. Cuyahoga No. 92603, 2009-Ohio-4568), a chiropractor who pleaded no contest to voyeurism with female patients was ordered not to use his license during his five years of community control. The 8th District concluded the trial court had not suspended his license, but ordered him not to use it during that time period.

However, the 11th District found Fontana’s assignment of error had merit since the authority to revoke or suspend a nursing license lies with the state board of nursing.

“Thus, although the trial court is authorized to impose conditions on Fontana’s use of her license during the period of community control, the court exceeded the scope of its authority when it ordered forfeiture,” appellate Judge Thomas R. Wright wrote.

In her second assignment of error, Fontana alleged the trial court abused its discretion when it found her eligible for intervention in lieu of conviction, ruled that ILC would not demean the seriousness of the offense and would reduce the likelihood of recidivism, but then denied her ILC anyway.

The appellate panel found that claim lacks merit.

“The trial court had discretion to determine whether she is a good candidate for ILC,” Judge Wright added. “It concluded that she was not. Fontana’s PSI indicates she improperly used her prescriptive authority on 16 different occasions between January 2015 and November 2015. Fontana has failed to establish an abuse of discretion.”

The trial court’s decision was remanded to determine if there should be use limitations on her nursing license.

Eleventh District Judge Timothy P. Cannon concurred.

Appellate Judge Colleen Mary O’Toole dissented, finding merit in both assignments of error.

“I appreciate the fact the majority has ordered the trial court to change the revocation of Ms. Fontana’s license to a condition of her community control sanctions,” Judge O’Toole wrote in her dissenting opinion. “However, since the discipline of licensed professionals is confided to the appropriate state board, I believe the courts should not use license conditions as community control sanctions. It treads on the separation of powers.”

Judge O’Toole argued that although the appellant was in a position of trust, she did not breach any fiduciary duty in committing the crimes.

“If she had stolen medications from a patient, or used their names to obtain drugs for herself, that could easily be seen as breaching a fiduciary relationship,” Judge O’Toole added. “However, she committed her crimes by writing out prescriptions in her mother’s name. Nothing in the record suggests her mother was her patient. Since the trial court found that she was otherwise eligible for ILC, it was an abuse of discretion for it not to grant ILC to Ms. Fontana.”

The case is cited State v. Fontana, 2019, Ohio-72.


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