[Cite as State v. Davis, 2013-Ohio-3966.]


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

STATE OF OHIO                                         C.A. No.     12CA010272

        Appellant

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PETER D. DAVIS                                        COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellee                                      CASE No.   10CR081845

                                  DECISION AND JOURNAL ENTRY

Dated: September 16, 2013



        HENSAL, Judge.

        {¶1}     The State of Ohio appeals a judgment of the Lorain County Court of Common

Pleas that dismissed the criminal charges pending against Peter Davis.        For the following

reasons, this Court affirms.

                                                 I.

        {¶2}     On December 2, 2010, the Lorain County Grand Jury indicted Mr. Davis on two

counts of theft and one count of passing bad checks, all felonies of the fourth degree. After

initially pleading not guilty to the charges, Mr. Davis filed a “motion for diversion” on May 25,

2011. The trial court subsequently ordered the Adult Parole Authority to conduct a preliminary

investigation and report. The State filed a memorandum in opposition to the motion on May 31,

2011, and Mr. Davis replied thereto.

        {¶3}     On August 19, 2011, the trial court held a hearing on Mr. Davis’s motion. At the

conclusion of the hearing, the trial court granted his request. In order to be admitted to the
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diversion program, Mr. Davis entered guilty pleas to the charges in the indictment. The trial

court informed him that, under the program, he would be subject to supervision for one year. It

also informed him that he would be required to pay restitution and refrain from committing any

crimes or engaging in drug or alcohol use for one year. That same day, the trial court issued an

order indicating that Mr. Davis had entered a plea of guilty to the charges in the indictment and

that the trial court accepted his application to the “Lorain County Court of Common Pleas

Diversion Program.” Just over a year later, on September 6, 2012, the trial court issued a journal

entry dismissing the complaint on the basis that Mr. Davis had successfully completed the

program. The State filed a timely notice of appeal. It has raised two assignments of error for

this Court’s review.

                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT IMPROPERLY DISMISSED DAVIS’[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 [SO AS] TO
       REMOVE ONE OF THE ESSENTIAL PARTIES TO THE CASE AND TO
       VIOLATE THE CONSTITUTIONAL CONCEPT OF SEPARATION OF
       POWERS.

       {¶4}    In its first assignment of error, the State argues that the trial court improperly

dismissed the indictment based on Mr. Davis’s completion of the court’s diversion program.

According to the State, the Lorain County common pleas court did not have authority to create a

diversion program. In its second assignment of error, the State contends that the trial court’s
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diversion program violates the separation of powers doctrine as it removes an essential party

from a criminal proceeding.

        {¶5}    This Court recently confronted a similar challenge to the “Lorain County Court of

Common Pleas Diversion Program” in State v. Wagner, 9th Dist. Lorain No. 12CA010199,

2013-Ohio-2036. In Wagner, the State raised assignments of error identical to those raised in the

instant appeal. In overruling the first assignment of error, this Court noted that, while the State

argued that only a prosecuting attorney has authority to establish a pretrial diversion program

pursuant to Revised Code Section 2935.36, the trial court had not purported to act under the

authority of that statute. Rather, the trial court cited the intervention in lieu of conviction statute,

Section 2951.041, as the authority for its actions. Id. at ¶ 4-5. In regard to the constitutional

challenge, this Court further concluded that because the State had not challenged the

constitutional validity of Section 2951.041, it had forfeited that issue. Id. at ¶ 7.

        {¶6}    Here, as in Wagner, there is nothing in the record to suggest that the trial court

relied on the authority of Section 2935.36 in creating the alleged diversion program. While the

State argues that the court did not have statutory authority to create a diversion program, its merit

brief is devoid of any discussion regarding whether the trial court’s actions constituted

intervention in lieu of conviction pursuant to Section 2951.041. Moreover, the record before this

Court does not contain any documentation detailing the alleged diversion program, the process

by which the program was created, or the terms under which the program is administered.

Wagner at ¶ 9 (Whitmore, J., concurring in judgment only). Accordingly, even though the State

objected on the record to Mr. Davis being permitted to participate in a pretrial diversion

program, under the circumstances of the instant appeal, where the record does not contain any

detail regarding the allegedly unlawful diversion program, this Court cannot review the validity
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of the program or, consequently, the merits of the State’s assignments of error. Id. The State’s

assignments of error are overruled.

                                                III.

       {¶7}    Based on the record that is before this Court, we are unable to review the merits

of the State’s arguments. The judgment of the Lorain County Court of Common Pleas is

affirmed.

                                                                              Judgment affirmed.




       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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
                                                 5


WHITMORE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶8}    I agree with the majority’s conclusion that without details of the pretrial diversion

program we cannot review its validity. However, I write separately to clarify that any analysis of

R.C. 2951.041 is unnecessary. See State v. Wagner, 9th Dist. Lorain No. 12CA010199, 2013-

Ohio-2036, ¶ 9 (Whitmore, J., concurring in judgment only). The State makes no argument that

R.C. 2951.041 was used in this case. As such, R.C. 2951.041 is not at issue.

       {¶9}    As in Wagner, the State limits its challenge to a Lorain County Common Pleas

Diversion Program, a diversion program allegedly created by the court. Once again, the State

has failed to provide this Court with any documentation regarding such a program. As the lead

opinion accurately concludes, without such documentation in the record, we must affirm.


CARR, P. J.
DISSENTING.

      {¶10}    I respectfully dissent.   I would hold that the Lorain County Common Pleas

Diversion Program is unconstitutional as it violates the separation of powers doctrine. The trial

court’s diversion program infringes on the power of the legislative branch to establish crimes and

punishments, as well as the power of the executive branch to choose how to prosecute offenders.

      {¶11}    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
                                                 6


(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), quoting Ex Parte United States, 242

U.S. 27, 42 (1947).     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,

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

      {¶12}    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.

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 “[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
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its own pretrial diversion program, independent from the pretrial diversion program created by

the prosecuting attorney pursuant to R.C. 2935.36.

      {¶13}    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

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.
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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

      {¶14}    Here, Davis was indicted on three felony charges on December 2, 2010. Davis

then successfully petitioned the trial court for acceptance into the trial court’s pretrial diversion

program over the vigorous objection of the State. In order to be admitted to the trial court’s

diversion program, Davis entered guilty pleas to the charges in the indictment. Subsequently, the

trial court made an independent determination that Davis had completed its diversion program,

and issued an order dismissing the charges in the indictment. Thus, the trial court took the

executive decision of whether to prosecute Davis away from the prosecuting attorney, and

terminated the criminal prosecution without the consent of the prosecutor. I would conclude that

usurping the role of the prosecutor in this manner violates the doctrine of separation of powers.

Curry, 134 Ohio App.3d at 118.

      {¶15}    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



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.
                                               9


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 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, I would hold that the Lorain County Pretrial Diversion Program violates the separation

of powers doctrine.


APPEARANCES:

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

JACK W. BRADLEY and MALLORY J. HOLMES, Attorneys at Law, for Appellee.
