[Cite as State v. Barber-Hartman, 2014-Ohio-5087.]


STATE OF OHIO                    )                        IN THE COURT OF APPEALS
                                 )ss:                     NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                             C.A. No.    14CA010546

        Appellant

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
BRENDA K. BARBER-HARTMAN                                  COURT OF COMMON PLEAS
                                                          COUNTY OF LORAIN, OHIO
        Appellee                                          CASE No.   11CR082356

                                DECISION AND JOURNAL ENTRY

Dated: November 17, 2014



CARR, Presiding Judge.

        {¶1}    Appellant, State of Ohio, appeals the judgment of the Lorain County Court of

Common Pleas. This Court reverses and remands.

                                                     I.

        {¶2}    On March 2, 2011, the Lorain County Grand Jury indicted Brenda Barber-

Hartman on one count of theft. She pleaded not guilty to the charge at arraignment. On October

24, 2011, Barber-Hartman filed a motion for acceptance into the Lorain County Common Pleas

Court General Division Pretrial Diversion Program.            The State responded with a brief in

opposition to Barber-Hartman’s motion. Attached to the State’s brief in opposition was a copy

of the program. After holding a hearing on the matter January 9, 2012, the trial court found that

Barber-Hartman met the requirements for admission into the diversion program and granted the

motion over the objection of the State. Barber-Hartman pleaded guilty to the charge and was

informed by the trial court that failure to complete the program within one year would result in
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her dismissal from the program and appearance before the trial court for sentencing. On June 11,

2013, Barber-Hartman’s period of diversion was extended by the trial court by a period of six

months. Subsequently, on December 10, 2013, the trial court issued a journal entry indicating

that Barber-Hartman and the victim’s insurance company had paid the victim certain sums of

money, that the victim had been made whole, and that Barber-Hartman had successfully

completed the diversion program. Based on its determination that Barber-Hartman successfully

completed the program, the trial court issued a journal entry dismissing the indictment on

January 22, 2014.

       {¶3}   On appeal, the State raised two assignments of error.

                                              II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT IMPROPERLY DISMISSED BARBER-HARTMAN’S
       INDICTMENT UPON COMPLETION OF THE LORAIN COUNTY COURT
       OF COMMON PLEAS DIVERSION PROGRAM AS ONLY A PROSECUTING
       ATTORNEY HAS THE AUTHORITY TO ESTABLISH A PRE-TRIAL
       DIVERSION PROGRAM.

                               ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN STRUCTURING THE LORAIN COUNTY
       COURT OF COMMON PLEAS DIVERSION PROGRAM TO REMOVE ONE
       OF THE ESSENTIAL PARTIES TO THE CASE AND TO VIOLATE THE
       CONSTITUTIONAL CONCEPT OF SEPARATION OF POWERS.

       {¶4}   The State argues that only a prosecutor may establish a pretrial diversion program

under Ohio law and that the diversion program at issue in this case violates the doctrine of

separation of powers. We agree.

       {¶5}   This Court recently addressed multiple statutory and constitutional challenges to

the Lorain County Court of Common Pleas General Division Pretrial Diversion Program. In

State v. Dopart, 9th Dist. Lorain No. 13CA010486, 2014-Ohio-2901, this Court held that the
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program is unconstitutional as it violates the separation of powers doctrine. In reaching this

conclusion, this Court observed that “[i]n creating and maintaining the Lorain County Court of

Common Pleas General Division Pretrial Diversion Program, the trial court both disregarded the

legislative branch’s inherent authority to respond to the challenge of crime by defining offenses

and fixing penalties, and usurped the authority of the prosecuting attorney to maintain a pretrial

diversion program pursuant to the enactment of R.C. 2935.36.” Dopart at ¶ 11. As the instant

matter pertains to the same diversion program at issue in Dopart, the arguments set forth by the

State are well taken.

       {¶6}    The State’s assignments of error are sustained.

                                                III.

       {¶7}    The State’s assignments of error are sustained. The judgment of the Lorain

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this opinion.

                                                                             Judgment reversed,
                                                                            and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                    DONNA J. CARR
                                                    FOR THE COURT




WHITMORE, J.
CONCURS.

MOORE, J.
CONCURRING.

       {¶8}    I concur in judgment only out of deference to this Court’s precedent in Dopart,

2014-Ohio-2901.      While a common pleas court’s diversion program that excludes the

participation of the prosecutor is in my judgment, ill advised, I am not convinced that it is, in

fact, unconstitutional.


APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellant.

JACK BRADLEY, Attorney at Law, for Appellee.
