concurring.
Deurloo did not seek an interlocutory appeal from the trial court’s denial of her claim of entitlement to notice and an opportunity to be heard with respect to violation of the pretrial diversion agreement. Had she done so, I would have held that, in the absence of such notice and opportunity to be heard, prosecution upon the public indecency charge should not have gone forward.
A pre-trial diversion agreement is required to be filed with the court. I.C. 33-14-1-7(a)(3); furthermore, the statute speaks in terms of “if the court withholds prosecution” under Section 7. It is clear, therefore, that the court is not merely a disinterested bystander with regard to the diversion agreement.4 For this reason, I would hold that the trial court was mistaken in its conclusion that it totally lacked responsibility or authority with regard to the agreement or with respect to whether any of the conditions of the agreement had been violated.
The pre-trial diversion agreement program is somewhat analogous to the program for treatment of drug abusers and alcoholics as an alternative to prosecution. See I.C. 12-23-6-1 et. seq. With regard to the latter program, this court has held that termination may not be arbitrary and requires “certain minimal due process protection”. Hopper v. State (1989) Ind.App., 546 N.E.2d 106, trans. denied.5 To be sure, Hopper involved post-conviction rather than pre-trial treatment. But the statutory drug and alcohol treatment program is applicable to both pre-trial and post-conviction situations. I see no basis upon which to afford notice and opportunity to be heard in one such setting but not in the other.
Accordingly, I would hold that, at a minimum, Deurloo was entitled to notice and an opportunity to be heard with respect to the State’s allegation that she had violated a condition or conditions of the agreement.
Here, however, the prosecution followed termination of the agreement and, as noted by the majority, Deurloo does not claim that such termination resulted in any denial of due process at the trial stage nor that her conviction is otherwise tainted. For this reason I too vote to affirm the conviction.
. The majority alludes to the statutes of other jurisdictions which provide for “judicial involvement” in their pre-trial diversion programs. The majority does not find such implication in our statute, notwithstanding that the agreement must be filed with the court and notwithstanding that conditions, other than those specifically enumerated in the statute, may be made a part of the agreement "if approved by the court”. I.C. 33-14 — 1-7(c).
. To be sure, the trial court s active involvement in the drug and alcohol abuse program is more pronounced and clear than in the pre-trial diversion program. See I.C. 12-23-7-8. Therefore, although the prosecutorial discretion present with respect to both programs is entitled to great deference, such deference does not justify the court ignoring an arbitrary or capricious termination of the treatment or diversion.