The Akron Legal News

Court improperly created diversion program

ANNIE YAMSON
Special to the Legal News
Published: July 15, 2014

The state of Ohio won an appeal recently when it challenged the judgment of the Lorain County Court of Common Pleas and its ability to establish and maintain a pretrial diversion program.

The 9th District Court of Appeals ruled that the lower court violated the doctrine of separation of powers by maintaining the program and dismissing an indictment against a defendant who completed it.

The defendant, Wayne Dopart, was indicted by the Lorain County Grand Jury in 2011 on one count each of tampering with records, theft, Medicaid eligibility fraud and falsification to facilitate a theft offense.

Dopart initially entered not guilty pleas and, after a lengthy discovery process, filed a motion for acceptance into the “Lorain County Common Pleas Court General Division Pretrial Diversion Program.”

The state filed a brief in opposition but the trial court ordered the Lorain County Adult Probation Department to conduct an investigation in order to determine if Dopart was fit for diversion.

Eventually, Dopart was approved and he pleaded guilty to all charges in order to be admitted to the program.

The trial court notified Dopart that he had one year to complete the diversion program and that failure to successfully complete the program would result in his removal and the imposition of a prison sentence.

A little more than a year later, the trial court issued a journal entry dismissing the indictment on the basis that Dopart had successfully completed the diversion program.

The state, in its appeal to the 9th District, argued that the trial court erred in dismissing the indictment because it lacked the authority to do so and because, under Ohio law, only the prosecutor may establish a pretrial diversion program.

Writing on behalf of the district’s three-judge appellate panel, Presiding Judge Donna Carr noted that the program at issue was labeled by the trial court as a pretrial diversion program.

“The characterization of the program is significant given that the trial court purportedly dismissed the indictment in this matter under the authority of R.C. 2951.041(E), a provision in the intervention in lieu of conviction statute,” wrote Judge Carr.

Under that statute, “the legislature made a determination that when chemical abuse is the cause or at least a precipitating factor in the commission of a crime, it may be more beneficial to the individual and the community as a whole to treat the cause rather than punish the crime,” according to Ohio’s Supreme Court.

In Dopart’s case, the Lorain County court cited R.C. 2951.041 as the basis of its authority to dismiss the complaint.

However, “a careful review of the program in its totality reveals that it does not function within the parameters of the treatment in lieu of convictions scheme outlined in R.C. 2951.041,” wrote Judge Carr.

The appellate panel found that the trial court, in its description of the program, made no reference to substance abuse being a factor in Dopart’s underlying conduct.

Rather, the court of appeals determined that the trial court’s program was more similar to that outlined in R.C. 2935.36, which gives the prosecutor the authority to establish a diversion program for adult offenders whom the prosecutor believes will not offend again.

“This court has observed that allowing a sentencing court to operate outside the confines of legislative mandates would be to reject not only the collective wisdom of the legislature, but also the authority of the citizenry itself,” wrote Judge Carr.

The appellate panel held that the authority to define and fix punishments for crimes belongs to the legislature.

“It follows that the power to authorize formal pretrial diversion programs is a legislative power,” wrote Judge Carr. “The creation of pretrial diversion programs is not a natural outgrowth of the charging function, but instead, represents a shift in how a state responds to the challenge of a crime.”

Since, in Ohio, the ability to maintain a pretrial diversion program has been specifically delegated to prosecutors by the General Assembly, the court of appeals concluded that the trial court acted without authority when it created and utilized its own program.

“Moreover, when the legislature has granted authority to the prosecuting attorney to maintain a pretrial diversion program, the judiciary violates the separation of powers doctrine when it attempts to usurp that authority,” wrote Judge Carr.

“This court has previously held that a trial court violates the constitutional concept of separation of powers when it takes the administrative and executive decision of whether to prosecute a defendant away from the prosecuting attorney and terminates the criminal prosecution without the consent of the prosecutor.”

Judge Carla Moore concurred but dissented in part with regard to the appellate panel’s analysis. She agreed with the majority’s conclusion but wrote to note that it was unnecessary to consider constitutional questions when it wasn’t even clear from the journal entry that Dopart ever actually completed the program.

Ultimately, the judgment of the Lorain County court was reversed and the matter remanded with Judge Beth Whitmore joining Judge Carr to form the majority.

The case is cited State v. Dopart, 2014-Ohio-2901.

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