[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.