Diversion Programs


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

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 R.C. 2935.36 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.
State v. 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 ineligible.
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 diversion program.
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 prosecutor.
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 appealable order.
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 license.
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 applicable rules.
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 R.C. 2935.33, 2935.36, 2951.04 or 2951.041

Publishing Information

Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.