Franklin County Criminal Law Casebook
Reproduced with permission from
David L. Strait and the Franklin County Public Defender Office
DIVERSION PROGRAMS (074)
R.C. 2935.36 -- Pre-trial diversion programs
for certain offenders.
State v. Bales, 195 Ohio App. 3d 538,
2011-Ohio-5336, 960 N.E.2d 1053 (9th Dist) – Defendant entered a guilty plea
and was admitted to a diversion program. Prosecutor appealed as a matter of
right, contending this was contrary to law because failure to honor the state’s
objection diminished the discretion given prosecutors. Dismissed as the
prosecutor failed to properly invoke the appellate court’s jurisdiction.
Admission to the program did not constitute a sentence. Prosecutor was required
to seek leave to appeal.
Lane v. Phillabaum,
182 Ohio App. 3d 145,
2008-Ohio-2502 – Miami University students brought suit challenging a
diversion program set up by a county court. Summary judgment properly granted as
courts have the inherent power to establish such programs, notwithstanding
regulating programs set up by prosecutors. However, the court is advised that
payment of a "donation" to specified funds, rather than the county treasury, is
unlawful and is further encourage to follow the statue, which among other things
requires written standards. Students portrayed as ingrates. Among other things
they wanted records unsealed to facilitate a class action.
Wojnarowski, 141 Ohio App. 3d 141,
2008-Ohio-5749 – Defendant changed counsel after entering
plea to domestic violence. New counsel sought to vacate plea and
have him placed on a mental health court docket. Opinion quotes
Cuyahoga County Local Rule 30.1 which contemplates application
at arraignment, then lists the ways in which the defendant was
State v. Tekulve, 188
Ohio App. 3d 792,
2010-Ohio-3604 – Defendant pled no contest to stealing a
ball cap. As a result he was later bounced from a diversion
program. Motion to withdraw no contest plea was denied.
Affirmed. Defendant admitted taking cap and the circumstances do
not suggest a manifest injustice.
State v. Leisten, 166 Ohio App. 3d 805,
2006-Ohio-2362 -- Defendant was dropped from a diversion program, then made
application for intervention in lieu of conviction. The judge erroneously ruled
she was ineligible. Though the judge could have summarily denied the
application, following 2000 changes in the law diversion and intervention in
lieu of conviction are not mutually exclusive.
In re Paterson (1999), 134 Ohio App. 3d
113 -- Diversion program entailed entry of a guilty plea at time of acceptance.
When defendant failed to complete restitution, prosecutor discharged him from
the program and asked the court to conduct a sentencing hearing. By the time
this took place, restitution had been completed and the court sua sponte
dismissed charge. Reversed as a violation of separation of powers. Nonetheless,
court may take restitution into account in passing sentence. Court notes that
the diversion statute does not make entry of a guilty plea a necessary part of a
State v. Urvan (1982), 4 Ohio App. 3d
151 -- Successful completion of a diversion program is the
equivalent of serving a sentence or completing probation. If
related charges would have merged if pursued initially, they may
not be pursued upon completion of diversion. Court views
diversion as a contract between the defendant and the
Cleveland v. Mosquito (1983), 10 Ohio
App. 3d 239 -- While
R.C. 2935.36 vests the prosecuting attorney
with discretion regarding eligibility for placement in a
diversion program, it does not outlaw previously established
diversion programs which gave such discretion to the judiciary.
However, the prosecutor has a practical veto since a nolle
prosequi ultimately may be entered only with his consent.
State v. Newberry (1991), 77 Ohio App.
3d 818 -- Defendants held not to have been entitled to a hearing
following rejection for participation in a diversion program
under the auspices of the prosecutor's office. Also see State
v. Newberry (1991), 65 Ohio App. 3d 179 -- Entry overruling
original motion seeking hearing on rejection was not a final
State v. Long (1990), 70 Ohio App. 810
-- Defendant's application for a diversion program available to
those charged with OMVI extended time within which she had to be
brought to trial.
State v. Pickens (1996), 109 Ohio App.
3d 147 -- Failed polygraph accepted as basis for expelling
defendant from diversion program. Diversion agreement included
submission to polygraph on request. Court had previously held a
due process hearing was required when a person was to be cut
from a diversion program. Court rejects defendant's claim that
the prosecutor was required to present clear and convincing
evidence establishing basis for expulsion. Instead, the
prosecutor has the burden of establishing the basis for
termination, after which the defendant has the burden of
establishing by a preponderance that the prosecutor violated the
agreement and abused its discretion in revoking participation.
Strickland v. Ohio Bureau of Motor Vehicles
(1994), 92 Ohio App. 3d 755 -- BMV suspended license under the
implied consent law. Defendant subsequently entered a
conditional plea of guilty and entered a diversion program.
Written plea did not provide for it to be withdrawn if program
was not completed, but did state that the plea would not be
accepted and the charge would be dismissed upon successful
completion. Held that the Bureau was required to reinstate
Cuyahoga Falls v. Simich (1982), 5 Ohio
App. 3d 10 -- Placement in alcohol abuse diversion program
involved signing a guilty plea form with the understanding the
charge would be dismissed if the defendant completed the form.
When the defendant failed to do so, the form was submitted to
and accepted by the court. Held that this was improper and that
the plea was not voluntarily made in accordance with the
State v. Mintz (1991), 74 Ohio App. 3d
62 -- Defendant was placed in a diversion program for those
charged with domestic violence. This entailed entering a no
contest plea, waiving his right to a speedy trial and agreeing
to have finding entered at a later date. Court found entry of no
contest plea alone did not amount to waiver of speedy trial
rights and waiver of speedy trial was void when defendant was
removed from program.
State v. Monk (1994), 64 Ohio Misc. 2d
1 -- After the defendant completed a diversion program and a
domestic violence charge was dismissed, the state could not
later indict him for felonious assault based on the same
conduct. Decision rests in part of Grady v. Corbin, but
same result should still follow under other cases cited.
State v. Radich (1992), 84 Ohio App. 3d
429 -- Court erroneously dismissed OMVI charge at the conclusion
of a diversion program where the circumstances of the case
failed to mesh with provisions of