[Cite as State v. Bales, 2012-Ohio-4426.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

STATE OF OHIO 

 Appellant 

 v. 

TODD M. BALES 

 Appellee 

C.A. No. 11CA010126 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 100CR080176 

DECISION AND JOURNAL ENTRY

Dated: September 28, 2012 

 

MOORE, Judge. 

{¶1} Plaintiff-Appellant, State of Ohio, appeals from the November 7, 2011 judgment 

entry of the Lorain County Court of Common Pleas dismissing, with prejudice, the criminal case 

against Defendant-Appellee, Todd M. Bales, for successful completion of the Lorain County 

Pretrial Diversion Program (“Diversion Program”). For the following reasons, we reverse. 

I. 

{¶2} On April 12, 2010, the Lorain County Court of Common Pleas created a 

Diversion Program for felony offenders. The journal entry adopting the Diversion Program was 

signed by six Lorain County common pleas judges. It reads: 

In accordance with the Ohio Constitution this Court hereby creates a Pretrial 

Diversion Program for the purpose of providing a viable alternative to criminal 

prosecution while consistently maintaining protection of the public. Accordingly, 

the program attached to this order is hereby adopted effective April 12, 2010. 

Pursuant to the terms of the Diversion Program: 

A person is eligible * * * if he/she (1) is an adult; (2) has no prior felony 

convictions (a sealed felony conviction excludes a person from participation in 
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the program); (3) has no “pattern of criminal behavior”; (4) voluntarily consents 

to participation in the program; (5) agrees to abide by the conditions established 

by the Diversion Unit; (6) is charged with committing a felony which is not 

excluded by statute; and (7) does not owe restitution in an amount exceeding 

$5,000.00. 

 Further, “[i]f the offender successfully completes this program, the charges are dismissed 

against the offender.” However, “[f]ailure to complete the program successfully will result in the 

offender’s case being reactivated and placed on the docket for sentencing.” 

{¶3} Mr. Bales was indicted for felonious assault, in violation of R.C. 2903.11(A)(1), a 

felony of the second degree. Prior to trial, Mr. Bales filed a motion for acceptance into the trial 

court’s Diversion Program. In response, the trial court ordered the Lorain County Adult 

Probation Department to conduct an investigation into whether Mr. Bales qualified for the 

program. The State objected by filing a memorandum in opposition to Mr. Bales’ motion for 

acceptance into the Diversion Program. In its memorandum, the State alleged that: (1) it wished 

to proceed with the criminal prosecution of Mr. Bales, (2) the Diversion Program had been 

established by the trial court without the prosecutor’s participation or acquiescence, (3) Mr. 

Bales had not been accepted into the pre-trial diversion program established by the Lorain 

County Prosecutor’s Office, and (4) the State did not, and would not, recommend that Mr. Bales’ 

charges be dismissed. 

{¶4} At the hearing on Mr. Bales’ motion for acceptance into the Diversion Program, 

the State objected on the record, stating: 

* * * 

For the record, in this matter before the Court, there has been no offer from the 

State for [Mr. Bales] to enter the Court’s Diversion Program. [Mr. Bales’] 

acceptance into the Court’s Diversion Program would be made without the 

prosecutor’s participation or acquiescence, but rather with the State’s objection. 
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And it is the State’s intention to proceed with the criminal prosecution of [Mr. 

Bales]. The State does not and will not recommend [that Mr. Bales’] charges be 

dismissed. 

And for the record, the Court was correct, the State does intend to appeal any 

admission to the Court’s Diversion Program. 

* * * 

{¶5} Over the State’s objection, the trial court approved Mr. Bales’ application for the 

Diversion Program and Mr. Bales pleaded guilty to the charges in the indictment. The trial 

court’s order stated that “[Mr. Bales] is ordered to participate in the Diversion Program and to 

successfully complete the [Diversion] Program within a period of one (1) year from [the date of 

the order], or within such period of time longer than one (1) year as the court, in its discretion, 

may order.” 

{¶6} Pursuant to R.C. 2953.08(B), the State appealed, as a matter of right, “arguing 

that ‘[Mr.] Bales’ sentence is contrary to law’ because the Lorain County Common Pleas Court 

Diversion Program diminishes the discretion of the prosecutor in contravention of R.C. 2935.36 

and the constitutional concept of separation of powers.” State v. Bales, 195 Ohio App.3d 538, 

2011-Ohio-5336, ¶ 1 (9th Dist.). This Court dismissed the appeal for lack of jurisdiction 

because, in accepting him into the Diversion Program, the trial court did not actually sentence 

Mr. Bales and, therefore, the State was required to seek leave of court in order to appeal. Id. at ¶ 

6. 

{¶7} The trial court then issued an order, sua sponte, finding that Mr. Bales had 

successfully completed the requirements of the Diversion Program, as well as all court orders 

associated with his placement in the program. The trial court ordered that “[s]upervision is 

hereby terminated successfully and the above captioned case is hereby dismissed with 

prejudice.” (Emphasis added.) 
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{¶8} The State timely appealed, and set forth three assignments of error for our 

consideration. 

{¶9} Prior to discussing the State’s assignments of error, we first address Mr. Bales’ 

contention that the State did not properly invoke the jurisdiction of this Court by filing its appeal, 

pursuant to R.C. 2945.67(A), as a matter of right. According to Mr. Bales, because the trial court 

sua sponte dismissed the criminal case, the State should have asked this Court for leave in order 

to properly file its appeal. We disagree. 

{¶10} R.C. 2945.67(A) states, in relevant part, that: 

A prosecuting attorney * * * may appeal as a matter of right any decision of a trial 

court in a criminal case, * * * which decision grants a motion to dismiss all or any 

part of an indictment, complaint or information * * * and may appeal by leave of 

the court to which the appeal is taken any other decision, except the final verdict, 

of the trial court in a criminal case [.] 

In In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, ¶ 12-13, quoting State v. Ryan, 17 Ohio 

App.3d 150, 151 (1st Dist.1984), the Supreme Court of Ohio discussed whether the State could 

appeal, as a matter of right, where the juvenile court dismissed charges on its own motion: 

R.C. 2945.67(A) outlines the circumstances under which the state may prosecute 

an appeal in a criminal or delinquency matter. * * * 

Here, the juvenile court dismissed the murder charge and amended the felonymurder charge on its own motion. This dismissal is the equivalent of a ‘decision 

grant[ing] a motion to dismiss’ under R.C. 2945.67(A). Such an order is final, as 

it affects a substantial right and prevented a judgment on the murder charges. R.C. 

2505.02(B). 

(Emphasis added.) In the present matter, similar to In re S.J., even though the trial court 

dismissed the indictment sua sponte, the State’s appeal is proper as a matter of right pursuant to 

R.C. 2945.67(A). Therefore, the jurisdiction of this Court has been properly invoked to consider 

this appeal. 
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II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT IMPROPERLY DISMISSED [MR.] BALES’ 

INDICTMENT UPON COMPLETION OF THE [DIVERSION PROGRAM]. 

{¶11} In its first assignment of error, the State argues that the trial court improperly 

dismissed the indictment against Mr. Bales after his successful completion of the Diversion 

Program. Specifically, the State argues that, pursuant to Crim.R. 48(A) and (B), the trial court 

erred in dismissing the indictment with prejudice. We agree. 

{¶12} We review a trial court’s dismissal of an indictment, pursuant to Crim.R. 48, 

under an abuse of discretion standard. See State v. Busch, 76 Ohio St.3d 613, 616 (1996). “An 

abuse of discretion implies that the trial court’s attitude, as evidenced by its decision, was 

unreasonable, arbitrary, or unconscionable.” Id. citing State v. Jenkins, 15 Ohio St.3d 164, 222 

(1984). 

{¶13} Crim.R. 48 states: 

(A) Dismissal by the [S]tate 

The [S]tate may by leave of court and in open court file an entry of dismissal of 

an indictment, information, or complaint and the prosecution shall thereupon 

terminate. 

(B) Dismissal by the court 

If the court over objection of the [S]tate dismisses an indictment, information, or 

complaint, it shall state on the record its findings of fact and reasons for the 

dismissal. 

(Emphasis sic.) Further, “[u]nder Crim.R.48(B) the court may not dismiss an indictment with 

prejudice unless it is apparent that the defendant has been denied either a constitutional or 

statutory right, the violation of which would, in itself, bar prosecution.” State v. Dixon, 14 Ohio 

App.3d 396 (8th Dist.1984); see also State v. Grundy, 9th Dist. No. 22843, 2006-Ohio-521, ¶ 5-8 
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(The trial court abused its discretion by dismissing the indictment with prejudice where the State 

moved to dismiss the indictment without prejudice, and where the record shows no evidence or 

claim of constitutional or statutory violations of the appellee’s rights.). 

{¶14} Here, it is not apparent from the record, and the trial court does not find in its 

order dismissing the case with prejudice, that Mr. Bales has been denied either a constitutional or 

statutory right that would bar prosecution. In its order, the only reason listed in support of the 

trial court’s dismissal with prejudice is Mr. Bales’ successful completion of the Diversion 

Program. The trial court makes no further findings regarding the denial of constitutional or 

statutory rights in support of a dismissal with prejudice over the objection of the State. 

Therefore, because it failed to make the requisite findings, we conclude that, pursuant to Crim.R. 

48(B), in dismissing the case with prejudice, the trial court abused its discretion. 

{¶15} The State’s first assignment of error is sustained. 

{¶16} We will now address the State’s second and third assignments of error together in 

order to better facilitate the discussion. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN STRUCTURING THE [DIVERSION 

PROGRAM] TO REMOVE ONE OF THE ESSENTIAL PARTIES TO THE 

CASE AND TO VIOLATE THE CONSTITUTIONAL CONCEPT OF 

SEPARATION OF POWERS. 

ASSIGNMENT OF ERROR III

ONLY A PROSECUTING ATTORNEY HAS THE AUTHORITY TO 

ESTABLISH A PRE-TRIAL DIVERSION PROGRAM. 

{¶17} In its second and third assignments of error, the State argues that (1) the Diversion 

Program is unconstitutional because it violates the separation of powers between the executive 
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and judicial branches of government, and (2) pursuant to R.C. 2935.36, only a prosecuting 

attorney may establish a pre-trial diversion program. 

{¶18} It is well-settled that “courts decide constitutional issues only when absolutely 

necessary.” Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, ¶ 54. However, “such 

necessity is absent where other issues are apparent in the record which will dispose of the case 

on its merits.” Greenhills Home Owners Corp. v. Village of Greenhills, 5 Ohio St.2d 207, 212 

(1966). As discussed above, the trial court improperly dismissed the indictment, with prejudice, 

because it failed to make the requisite findings regarding any statutory or constitutional 

violations of Mr. Bales’ rights. As such, we need not reach the constitutional issues raised in the 

State’s second and third assignments of error. 

III. 

{¶19} In sustaining the State’s first assignment of error and declining to address the 

State’s second and third assignments of error, we reverse the judgment of the Lorain County 

Court of Common Pleas and remand for further proceedings consistent with this decision. 

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 
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

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. 

 

 CARLA MOORE 

 FOR THE COURT 

WHITMORE, P. J. 

CARR, J. 

CONCUR.

APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting 

Attorney, for Appellant. 

DENISE G. WILMS, Attorney at Law, for Appellee.