[Cite as State v. Hatfield, 2013-Ohio-3069.]


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

STATE OF OHIO                                        C.A. No.      12CA010198

        Appellant

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
APRIL D. HATFIELD                                    COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellee                                     CASE No.   09CR079573

                                  DECISION AND JOURNAL ENTRY

Dated: July 15, 2013



        WHITMORE, Judge.

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

of Common Pleas, dismissing criminal charges against Appellee, April Hatfield. This Court

affirms.

                                                 I

        {¶2}     In December 2009, Hatfield was indicted on one count of robbery, in violation of

R.C. 2911.02(A)(3), a felony of the third degree. After proceeding through discovery, Hatfield

filed a motion for acceptance into the Lorain County Court of Common Pleas Diversion

Program. The trial court ordered a preliminary investigation and later denied her motion.

        {¶3}     Approximately one month later, the court ordered another diversion program

investigation. Subsequently, the court held a hearing, at which Hatfield entered a guilty plea.

Over the State’s objection, the court refused to enter a finding of guilt at that time, placed
                                                2


Hatfield in the court’s diversion program, and stayed the case. A year later, the court found that

Hatfield had successfully completed the diversion program and dismissed her case.

       {¶4}    The State now appeals and raises two assignments of error for our review. For

ease of analysis, we consolidate the assignments of error.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT IMPROPERLY DISMISSED HATFIELD’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 Number Two

       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.

       {¶5}    In its first assignment of error, the State argues that the court created diversion

program violates R.C. 2935.36 because pre-trial diversion programs may only be created by

prosecuting attorneys.   In its second assignment of error, the State argues that the court’s

diversion program is unconstitutional because it impermissibly shifts the decision of whether to

prosecute a case from the prosecutor to the court.

       {¶6}    This case is one in a series of cases challenging the Lorain County Court of

Common Pleas Diversion Program. This case, as with all of the others filed to date, contains a

fatal flaw: the details of the court’s pretrial diversion program are nowhere in the record. As a

reviewing court, this ties our hands. We are limited to reviewing materials contained within the

appellate record. See State v. Garfield, 9th Dist. Lorain No. 09CA009741, 2011-Ohio-2606, ¶

59. App.R. 12(A)(1)(b). Because the State has failed to include in the record any details
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regarding the court’s allegedly unlawful diversion program, we are unable to review the validity

of the program. We are left with no choice but to affirm the trial court. Accordingly, the State’s

assignments of error are overruled.

                                                III


       {¶7}    The State’s assignments of error are overruled. 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.




                                                      BETH WHITMORE
                                                      FOR THE COURT
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MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

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

JAMES INGALLS, Attorney at Law, for Appellee.
