[Cite as State v. Dopart, 2014-Ohio-2901.]


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

STATE OF OHIO                                         C.A. No.     13CA010486

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
WAYNE DOPART                                          COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   11CR082333

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 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 February 23, 2011, the Lorain County Grand Jury indicted Wayne Dopart on

one count of tampering with records, one count of theft, one count of Medicaid eligibility fraud,

and one count of falsification to facilitate a theft offense. Dopart pleaded not guilty to the

charges at arraignment.         After a prolonged discovery period, Dopart filed a motion for

acceptance into the “Lorain County Common Pleas Court General Division Pretrial Diversion

Program” on July 10, 2012. The State filed a brief in opposition, and attached a copy of the

program to its brief. The trial court subsequently ordered the Lorain County Adult Probation

Department to conduct an investigation to determine whether Dopart was fit for diversion. The

trial court subsequently issued an order approving Dopart’s application. Dopart pleaded guilty to
                                                 2


the charges in order to be admitted to the diversion program. Dopart was notified that he had

one year to complete the diversion program, and that failure to successfully complete the

program would result in his removal from the program and the imposition of a sentence. A little

over a year later, on September 20, 2013, the trial court issued a journal entry dismissing the

indictment on the basis that Dopart had successfully completed the trial court’s diversion

program.

       {¶3}    On appeal, the State raises three assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT IMPROPERLY DISMISSED MR. DOPART’S
       INDICTMENT UPON COMPLETION OF THE LORAIN COUNTY COURT
       OF COMMON PLEAS DIVERSION PROGRAM UNDER THE AUTHORITY
       OF R.C. 2951.041(E).

                                ASSIGNMENT OF ERROR II

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

                                ASSIGNMENT OF ERROR III

       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}    In support of its position that the trial court erred in dismissing the indictment in

this case, the State argues that the trial court lacked authority to dismiss the indictment pursuant

to R.C. 2951.041, that only the prosecutor may establish a pretrial diversion program under Ohio

law, and that the trial court’s implementation of the program violates the doctrine of separation
                                                3


of powers. We agree that the trial court lacked authority to create and maintain a pretrial

diversion program.

       {¶5}    At the outset of our discussion, we note that the program at issue in this case must

be characterized as a pretrial diversion program. The trial court has labeled it as such, and it

functions in a manner similar to a pretrial diversion program that may be operated by a

prosecutor’s office pursuant to R.C. 2935.36.

       {¶6}    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. The Supreme Court of Ohio has

recognized that “[i]n enacting R.C. 2951.041, 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.” State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, ¶ 10, quoting State v.

Shoaf, 140 Ohio App.3d 75, 77 (10th Dist.2000) (referring to a previous, but similar version of

R.C. 2951.041). While Section G of the program’s guidelines cites R.C. 2951.041 as a basis of

authority to dismiss the complaint, a careful review of the program in its totality reveals that it

does not function within the parameters of the treatment in lieu of conviction scheme outlined in

R.C. 2951.041. Section A, which outlines the program’s objectives, and Section B, which

discusses eligibility, make no reference to substance abuse being a factor in the underlying

conduct, or pursuing substance abuse treatment in lieu of a conviction. Rather, the overall

structure of the program is markedly similar to the framework outlined in R.C. 2935.36, which

permits the prosecutor to establish a diversion program for adult offenders whom the prosecutor

believes will not offend again. Notably, the preamble to the program at issue here states,
                                                 4


“Diversion is an alternative to traditional prosecution of eligible felony offenders who appear

likely not to engage in criminal behavior in the future.” Thus, in light of the trial court’s

characterization and structuring of the program, and given that Dopart does not dispute the

nature of the program, this Court must answer the question of whether the trial court has the

authority to create and maintain a diversion program under Ohio law.

       {¶7}    The Supreme Court of Ohio has stated, “It has long been recognized in this state

that the General Assembly has the plenary power to prescribe crimes and fix penalties.” State v.

Morris, 55 Ohio St.2d 101, 112 (1978), citing Municipal Court v. State ex rel. Platter, 126 Ohio

St. 103 (1933). 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. State v. Wright, 9th Dist. Medina No.

2371-M, 1995 WL 404964 (June 28, 1995), citing Harmelin v. Michigan, 501 U.S. 957, 1006

(1991) (Kennedy, J., concurring). This Court has emphasized that “the authority to define and

fix the punishment for a crime belongs indisputably to the legislature.” State v. Woods, 9th Dist.

Medina No. 2376-M, 1995 WL 434374 (July 19, 1995), citing Ex Parte United States, 242 U.S.

27, 42 (1916). Because of the paramount role the legislature plays in framing the boundaries for

criminal sentencing, “state trial judges and magistrates do not have inherent or statutory power to

set aside legislatively enacted sentences. The discretionary power of judges to sentence is

granted by the legislature and can be circumscribed by the legislature.”           Woods, quoting

Cleveland v. Scott, 8 Ohio App.3d 358, 359 (8th Dist.1983).

       {¶8}    It follows that the power to authorize formal pretrial diversion programs is a

legislative power. 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 crime.
                                                 5


Polikov v. Neth, 270 Neb. 29, 39 (2005). As the Supreme Court of Nebraska has recognized, the

authorization of pretrial diversion programs is “the type of broad restructuring of the goals of the

criminal justice system that is entrusted to the Legislature rather than to the executive branch.”

Id. Therefore, when a prosecutor’s office maintains a pretrial diversion program, it may do so

only to the extent that the legislature has specifically delegated that authority. In Ohio, the

General Assembly has given that authority to prosecuting attorneys by virtue of the enactment of

R.C. 2935.36, which states that “[t]he prosecuting attorney may establish pre-trial diversion

programs for adults who are accused of committing criminal offenses and whom the prosecuting

attorney believes probably will not offend again.” There is no language in R.C. 2935.36 by

which the General Assembly has granted authority to trial courts to create similar pretrial

diversion programs. Thus, the trial court in this case acted without authority when it created and

utilized its own pretrial diversion program, independent from the pretrial diversion program

created by the prosecuting attorney pursuant to R.C. 2935.36.

       {¶9}    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. “The administration of justice by the judicial branch of

the government cannot be impeded by the other branches of the government in the exercise of

their respective powers.” Woods v. Telb, 89 Ohio St.3d 504, 511 (2000), quoting State ex rel

Johnston v. Taulbee, 66 Ohio St.2d 417 (1981), paragraph one of the syllabus. But the judicial

branch must also respect the boundaries set on its powers, including the executive branch’s

authority to prosecute criminal offenses. 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
                                                  6


terminate[s] the criminal prosecution without the consent of the prosecutor.” State v. Curry, 134

Ohio App.3d 113, 118 (9th Dist.1999). Under similar circumstances, the Fifth District held that

“it violates the constitutional concept of separation of powers for any judge to take the

administrative and executive decision whether or not to proceed with prosecution away from the

prosecuting attorney, and elect either to delay, defer, divert or terminate a criminal prosecution

without the prosecutor’s consent pre-trial.”       Ontario v. Shoenfelt, 5th Dist. Richland No.

CA2302, 1985 WL 8284 (July 30, 1985). The Fifth District has further recognized that the trial

court “merely performs an administrative function” in a pretrial diversion program maintained by

the prosecutor pursuant to R.C. 2935.36, and that “to cross over the line and determine

successful completion at termination would blur the line between the judicial and executive

branches.” State v. Goodman, 5th Dist. Licking No. 2007CA00064, 2009-Ohio-979, ¶ 20.

There is no language in the Ohio Constitution granting trial courts the authority to maintain a

pretrial diversion program.      Article IV, Section 4, Ohio Constitution, which governs the

organization and jurisdiction of common pleas courts, and Article IV, Section 18, Ohio

Constitution, which governs powers and jurisdiction of judges, are devoid of any language

granting the trial court the authority to create a pretrial diversion program.1

       {¶10} In this case, Dopart was indicted on four felony charges by the Lorain County

Grand Jury.     He subsequently petitioned for acceptance into the Lorain County Court of

Common Pleas Diversion Program. The trial court admitted him into its diversion program

despite the fact that the State argued that the trial court had no authority to create and maintain



1
  While Article 4, Section 18, Ohio Constitution does state that common pleas judges “shall * * *
have and exercise such power and jurisdiction * * * as may be directed by law,” the General
Assembly’s enactment of R.C. 2935.36 granted authority to create a pretrial diversion program to
the prosecuting attorney, not the common pleas judges.
                                                   7


such a program. After Dopart successfully completed the program, the trial court issued an order

dismissing the indictment. Thus, the trial court took the executive decision of whether to

prosecute Dopart away from the prosecuting attorney, and terminated the criminal prosecution

without the consent of the prosecutor. Usurping the role of the prosecutor in this manner violates

the doctrine of separation of powers. Curry, 134 Ohio App.3d at 118.

          {¶11} The Supreme Court of Ohio has long held, “‘The essential principle underlying

the policy of the division of powers of government into three departments is that powers properly

belonging to one of the departments ought not to be directly and completely administered by

either of the other departments, and further that none of them ought to possess directly or

indirectly an overruling influence over the others.’” State ex rel. Bray v. Russell, 89 Ohio St.3d

132, 134 (2000), quoting State ex rel. Bryant v. Akron Metro. Park Dist. 120 Ohio St. 464, 473

(1929).     In 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. For these reasons, the trial court’s pretrial diversion

program violates the separation of powers doctrine.

          {¶12} It follows that the State’s assignments of error are sustained.

                                                  III.

          {¶13} 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 decision.

                                                                                  Judgment affirmed.
                                                 8




       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

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 Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT




WHITMORE, J.
CONCURS.

MOORE, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶14} Years of experience have demonstrated that diversion programs, sometimes

referred to as “therapeutic jurisprudence,” serve a vital function in the criminal justice system.

The success of these programs has rested upon the involvement of all of the key players in the

planning, implementation and operation of the program. In this case, the State has challenged
                                                  9


the trial court’s dismissal of Mr. Dopart’s case and the constitutionality of a diversion program

developed by the trial court without participation of the prosecutor. Because we can resolve this

appeal without answering the constitutional question, I agree that the judgment must be reversed,

but I dissent from the majority’s decision to address assignments of error two and three on the

merits.

          {¶15} The State has presented us with three assignments of error. In its first assignment

of error, the State argues that the trial court improperly dismissed the criminal case under the

authority of R.C. 2951.041(E), the intervention in lieu of conviction statute. In its second and

third assignments of error, the State has argued that the court’s diversion program is

unconstitutional. Upon review of the first assignment of error, I agree with the State that the trial

court’s journal entry fails to comply with the requirements of R.C. 2951.041(E). The trial court

did not find that Mr. Dopart successfully completed his intervention plan, including that he

refrained from using illegal drugs and alcohol for at least one year, that he participated in

recovery support services, and that he complied with all other terms and conditions imposed by

the court. Without these findings, the trial court could not dismiss the proceedings against Mr.

Dopart pursuant to R.C. 2951.041(E). Accordingly, I would reverse the trial court’s judgment

and remand for the trial court to make the required findings.

          {¶16} Having resolved the case on the first assignment of error, I would decline to

address the second and third assignments of error. Courts should not address constitutional

questions when it is unnecessary to do so, as in this case where the State can prevail on its first

assignment of error. See, e.g., State ex rel. Crabtree v. Ohio Bur. of Workers' Comp., 71 Ohio

St.3d 504, 507 (1994) (“[W]hen a case can be decided on other than a constitutional basis, we are

bound to do so.”); State v. Stockwell, 8th Dist. Cuyahoga No. 82345, 2003-Ohio-5495, ¶ 12
                                                10


(“Courts find it unnecessary to address constitutional issues where the party raising that issue can

prevail on other grounds, making constitutional decisions unnecessary because any assumed

constitutional infirmity does not prejudice the complaining party.”).

       {¶17} For these reasons, I concur in part and dissent in part.


APPEARANCES:

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

KENNETH D. ORTNER, Attorney at Law, for Appellee.

JEFFREY S. BROWN, Attorney at Law, for Appellee.
