[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 

 Appellant 

 v. 

BRENDA K. BARBER-HARTMAN 

 Appellee 

C.A. No. 14CA010546 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

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 BarberHartman 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.