[Cite as State v. Price, 2015-Ohio-359.]


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

STATE OF OHIO                                        C.A. No.      14CA010603

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TYRONE T. PRICE                                      COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellee                                     CASE No.   11CR082848

                                  DECISION AND JOURNAL ENTRY

Dated: February 2, 2015



        MOORE, Judge.

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

Common Pleas. This Court reverses and remands.

                                                I.

        {¶2}     The Lorain County Grand Jury indicted Tyrone T. Price on one count of theft, in

violation of R.C. 2913.02(A)(3), a felony of the fourth degree, and one count of misuse of credit

cards, in violation of R.C. 2913.21(B)(2), a felony of the fourth degree. Mr. Price pleaded not

guilty to both counts and 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 Mr. Price’s motion, and attached a copy of the diversion program thereto. The trial

court found that Mr. Price met the requirements for admission into the diversion program and

granted his motion over the State’s objection. Mr. Price pleaded guilty to the charges, and the
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trial court informed him that failure to complete the program would result in dismissal, and, if

that happened, he would be sentenced for his crimes.

       {¶3}    On January 27, 2014, a hearing was held on whether Mr. Price successfully

completed the diversion program. At the hearing, the trial court found that Mr. Price had

successfully completed the program, and dismissed the indictment against him pursuant to

Crim.R. 48(B). The trial court journalized its ruling on May 9, 2014, stating:

       [The] [c]ourt held a hearing on [Mr. Price’s] performance under the Court’s
       Diversion Program. Based upon the evidence provided, the Court finds as
       follows: [Mr. Price] was admitted to the Lorain County Common Pleas Court
       Pre-trial Diversion Program On March 26, 2012; [Mr. Price] has paid all court
       costs and supervision fees owing under the Program; there is no further restitution
       owing to the victim; [Mr. Price] has successfully completed all conditions and
       requirements of the Program to the satisfaction of his supervising probation
       officer; [Mr. Price] has been rehabilitated to the satisfaction of this Court; and that
       the Lorain County Adult Probation Department has recommended dismissal of
       this case. Accordingly, and over the objection of the State of Ohio, this case is
       dismissed pursuant to Ohio Criminal Rule 48(B).

       {¶4}    The State appealed, raising two assignments of error for our consideration.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT IMPROPERLY DISMISSED [MR.] PRICE’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.
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       {¶5}    In its first and second assignments of error, 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.

       {¶6}    We review a trial court’s dismissal of criminal charges for an abuse of discretion.

State v. Cole, 9th Dist. Summit Nos. 26190, 26191, 2012-Ohio-4027, ¶ 7, citing State v. Busch,

76 Ohio St.3d 613, 616 (1996). An abuse of discretion “implies that a trial court’s decision is

unreasonable, arbitrary or unconscionable.” Cole at ¶ 7, citing State v. Adams, 62 Ohio St.2d

151, 157 (1980). Further, “[a] trial court possesses the inherent authority to dismiss charges sua

sponte.” Cole at ¶ 7, citing Busch at 615. “Crim.R. 48 governs the procedure by which a trial

court may dismiss a complaint over the State’s objection; however, ‘the circumstances under

which this may occur are not enunciated within the criminal rules.’” Cole at ¶ 7, quoting State v.

Arroyo, 9th Dist. Lorain No. 99CA007330, 2000 WL 223509, *1 (Feb. 23, 2000). “Although

‘the rule does not limit the reasons for which a trial judge might dismiss a case,’ the rule does

require that ‘[i]f the court over objection of the state dismisses an indictment, information, or

complaint, it shall state on the record its findings of fact and reasons for the dismissal.” Cole at ¶

7, quoting Busch at 615 and Crim.R. 48(B). In Busch at 615-616, the Supreme Court of Ohio

explained its reasoning as follows:

       Trial judges are at the front lines of the administration of justice in our judicial
       system, dealing with the realities and practicalities of managing a caseload and
       responding to the rights and interests of the prosecution, the accused, and victims.
       A court has the “inherent power to regulate the practice before it and protect the
       integrity of its proceedings.” Royal Indemn. Co. v. J.C. Penney Co., 27 Ohio St.3d
       31, 33-34 (1986). Trial courts deserve the discretion to be able to craft a solution
       that works in a given case.

As such, “a trial judge is allowed great flexibility in determining when the judicial process is no

longer useful in a given case such that a dismissal under Crim.R. 48(B) is warranted.” State v.
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Sanders, 7th Dist. Columbiana No. 12 CO 35, 2013-Ohio-5220, ¶ 13, citing State v. Montiel, 185

Ohio App.3d 362, 2009-Ohio-6589, ¶ 15 (2d Dist.).

       {¶7}    In State v. Bales, 9th Dist. Lorain No. 12CA010311, 2013-Ohio-5780, ¶ 11, this

Court analyzed a similar issue wherein the trial court sua sponte dismissed Mr. Bales’ indictment

after his successful completion of the Lorain County Common Pleas Court General Division

Pretrial Diversion Program. In affirming the trial court’s decision, we stated:

       Upon review of the record, and given the State’s limited argument on appeal
       which does not explain why the trial court’s dismissal pursuant to Crim.R. 48(B)
       was erroneous, we cannot conclude that the trial court abused its discretion in
       dismissing Mr. Bales’ criminal charges, without prejudice, pursuant to Crim.R.
       48(B). The trial court complied with Crim.R. 48(B) by including specific
       findings in its entry regarding the reasons for dismissing the charges against Mr.
       Bales, including: (1) successful participation in the judicially created diversion
       program, (2) payment of fines and court costs, (3) no pending criminal charges,
       (4) no dependence on alcohol or drugs, and (5) a positive recommendation from
       the adult probation department. Further, in its reply brief, the State admits that
       “Crim.R. 48(B) does permit a trial judge to dismiss an indictment, over the
       objection of the prosecutor, provided detailed findings are made on the record.” In
       addition, the State has not demonstrated why, in this instance, dismissal pursuant
       to Crim.R. 48(B) is not proper. As such, we cannot say that the trial court’s
       decision to issue a Crim.R. 48(B) dismissal of Mr. Bales’ criminal charges was
       “unreasonable, arbitrary or unconscionable.” See Cole, 2012-Ohio-4027, at ¶ 7.

       {¶8}    However, in State v. Dopart, 9th Dist. Lorain No. 13CA010486, 2014-Ohio-2901,

this Court recently deemed the Lorain County Court of Common Pleas General Division Pretrial

Diversion Program unconstitutional. In Dopart at ¶ 11, the majority held that the diversion

program is unconstitutional because it violates the separation of powers doctrine. In reaching

this conclusion, the majority stated 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.” Id.
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        {¶9}    Additionally, based upon our precedent in Dopart, this Court reversed and

remanded the trial court’s dismissal of Brenda Barber-Hartman’s indictment after she

successfully completed the Lorain County Court of Common Pleas General Division Pretrial

Diversion Program. See State v. Barber-Hartman, 9th Dist. Lorain No. 14CA010546, 2014-

Ohio-5087, ¶ 5. In Barber-Hartman, the majority stated:

        This Court recently addressed multiple statutory and constitutional challenges to
        the Lorain County Court of Common Pleas General Division Pretrial Diversion
        Program. In Dopart, this Court held that the program is unconstitutional as it
        violates the separation of powers doctrine. * * * As the instant matter pertains to
        the same diversion program at issue in Dopart, the arguments set forth by the
        State are well taken.

Id.

        {¶10} Here, in dismissing Mr. Price’s indictment, pursuant to Crim.R. 48(B), the trial

court stated on the record that Mr. Price (1) had successfully completed the diversion program,

(2) had not committed any crimes during the intervening time period, (3) had no “dirty urines,”

and (4) had satisfied his order of restitution and other financial obligations. Although the trial

court technically complied with the requirements of Crim.R. 48(B), it abused its discretion in

dismissing the indictment based upon the Lorain County Court of Common Pleas General

Division Pretrial Diversion Program, which, according to our precedent in Dopart, was

unconstitutional at the time of its creation. See Cole, 2012-Ohio-4027, at ¶ 7; see also Dopart,

2014-Ohio-2901, at ¶ 4; Sanders v. Marrero, 9th Dist. Lorain No. 98CA007002, 2000 WL

150770, *2 (Feb. 9, 2000), quoting Middletown v. Ferguson, 25 Ohio St.3d 71, 80 (1986),

quoting Norton v. Shelby County, 118 U.S. 425, 442 (1886), (“[a]n unconstitutional act is not a

law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in

legal contemplation, as inoperative as though it had never been passed.”) (Emphasis added.)

        {¶11} Accordingly, the State’s assignments of error are sustained.
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                                                III.

       {¶12} In sustaining the State’s assignments of error, 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

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.




                                                       CARLA MOORE
                                                       FOR THE COURT


HENSAL, J.
CONCURS IN JUDGMENT ONLY.
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BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.

       {¶13} I concur in the judgment out of respect for this Court’s precedent. See State v.

Dopart, 9th Dist. Lorain No. 13CA010486, 2014-Ohio-2901, ¶ 11. However, I do so reluctantly

because I am not convinced that the diversion program is unconstitutional. Furthermore, I am

troubled by the procedural footing of these cases.

       {¶14} Our legal system is an adversarial one, and it is problematic to decide important

issues without vigorous argument from both sides of the issue. See Penson v. Ohio, 488 U.S. 75,

84 (1988), quoting Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A.J.

569, 569 (1975), quoting Lord Eldon (“The paramount importance of vigorous representation

follows from the nature of our adversarial system of justice. This system is premised on the

well-tested principle that truth—as well as fairness—is ‘“best discovered by powerful statements

on both sides of the question.”’”). However, in all of the cases involving the diversion program,

the party that actually instituted the diversion program—the Lorain County Court of Common

Pleas, and the judges serving therein—are not part of the proceedings but, instead, are silent

bystanders, leaving the State essentially unopposed in its challenges to the authority of the

Lorain County Court of Common Pleas to institute and effectuate a diversion program.     I do not

believe that these cases constitute the proper procedure for challenging the authority of the

common pleas court or its judges.

       {¶15} Nevertheless, I am constrained by this Court’s precedent and, therefore, concur in

the judgment.
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APPEARANCES:

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

MICHAEL DUFF, Attorney at Law, for Appellee.
