[Cite as State v. Davis, 2013-Ohio-3966.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF LORAIN ) 

STATE OF OHIO 

 Appellant 

 v. 

PETER D. DAVIS 

 Appellee 

C.A. No. 12CA010272 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF LORAIN, OHIO 

CASE No. 10CR081845 

DECISION AND JOURNAL ENTRY

Dated: September 16, 2013 

 

HENSAL, Judge. 

{¶1} The State of Ohio appeals a judgment of the Lorain County Court of Common 

Pleas that dismissed the criminal charges pending against Peter Davis. For the following 

reasons, this Court affirms. 

I. 

{¶2} On December 2, 2010, the Lorain County Grand Jury indicted Mr. Davis on two 

counts of theft and one count of passing bad checks, all felonies of the fourth degree. After 

initially pleading not guilty to the charges, Mr. Davis filed a “motion for diversion” on May 25, 

2011. The trial court subsequently ordered the Adult Parole Authority to conduct a preliminary 

investigation and report. The State filed a memorandum in opposition to the motion on May 31, 

2011, and Mr. Davis replied thereto. 

{¶3} On August 19, 2011, the trial court held a hearing on Mr. Davis’s motion. At the 

conclusion of the hearing, the trial court granted his request. In order to be admitted to the 
2 

 

diversion program, Mr. Davis entered guilty pleas to the charges in the indictment. The trial 

court informed him that, under the program, he would be subject to supervision for one year. It 

also informed him that he would be required to pay restitution and refrain from committing any 

crimes or engaging in drug or alcohol use for one year. That same day, the trial court issued an 

order indicating that Mr. Davis had entered a plea of guilty to the charges in the indictment and 

that the trial court accepted his application to the “Lorain County Court of Common Pleas 

Diversion Program.” Just over a year later, on September 6, 2012, the trial court issued a journal 

entry dismissing the complaint on the basis that Mr. Davis had successfully completed the 

program. The State filed a timely notice of appeal. It has raised two assignments of error for 

this Court’s review. 

II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT IMPROPERLY DISMISSED DAVIS’[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 [SO AS] TO 

REMOVE ONE OF THE ESSENTIAL PARTIES TO THE CASE AND TO 

VIOLATE THE CONSTITUTIONAL CONCEPT OF SEPARATION OF 

POWERS. 

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

dismissed the indictment based on Mr. Davis’s completion of the court’s diversion program. 

According to the State, the Lorain County common pleas court did not have authority to create a 

diversion program. In its second assignment of error, the State contends that the trial court’s 
3 

 

diversion program violates the separation of powers doctrine as it removes an essential party 

from a criminal proceeding. 

{¶5} This Court recently confronted a similar challenge to the “Lorain County Court of 

Common Pleas Diversion Program” in State v. Wagner, 9th Dist. Lorain No. 12CA010199, 

2013-Ohio-2036. In Wagner, the State raised assignments of error identical to those raised in the 

instant appeal. In overruling the first assignment of error, this Court noted that, while the State 

argued that only a prosecuting attorney has authority to establish a pretrial diversion program 

pursuant to Revised Code Section 2935.36, the trial court had not purported to act under the 

authority of that statute. Rather, the trial court cited the intervention in lieu of conviction statute, 

Section 2951.041, as the authority for its actions. Id. at ¶ 4-5. In regard to the constitutional 

challenge, this Court further concluded that because the State had not challenged the 

constitutional validity of Section 2951.041, it had forfeited that issue. Id. at ¶ 7. 

{¶6} Here, as in Wagner, there is nothing in the record to suggest that the trial court 

relied on the authority of Section 2935.36 in creating the alleged diversion program. While the 

State argues that the court did not have statutory authority to create a diversion program, its merit 

brief is devoid of any discussion regarding whether the trial court’s actions constituted 

intervention in lieu of conviction pursuant to Section 2951.041. Moreover, the record before this 

Court does not contain any documentation detailing the alleged diversion program, the process 

by which the program was created, or the terms under which the program is administered. 

Wagner at ¶ 9 (Whitmore, J., concurring in judgment only). Accordingly, even though the State 

objected on the record to Mr. Davis being permitted to participate in a pretrial diversion 

program, under the circumstances of the instant appeal, where the record does not contain any 

detail regarding the allegedly unlawful diversion program, this Court cannot review the validity 
4 

 

of the program or, consequently, the merits of the State’s assignments of error. Id. The State’s 

assignments of error are overruled. 

III. 

{¶7} Based on the record that is before this Court, we are unable to review the merits 

of the State’s arguments. The judgment of the Lorain County Court of Common Pleas is 

affirmed. 

Judgment affirmed. 

 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 

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 Appellant. 

 

 JENNIFER HENSAL 

 FOR THE COURT 
5 

 

WHITMORE, J. 

CONCURRING IN JUDGMENT ONLY.

{¶8} I agree with the majority’s conclusion that without details of the pretrial diversion 

program we cannot review its validity. However, I write separately to clarify that any analysis of 

R.C. 2951.041 is unnecessary. See State v. Wagner, 9th Dist. Lorain No. 12CA010199, 2013-

Ohio-2036, ¶ 9 (Whitmore, J., concurring in judgment only). The State makes no argument that 

R.C. 2951.041 was used in this case. As such, R.C. 2951.041 is not at issue. 

{¶9} As in Wagner, the State limits its challenge to a Lorain County Common Pleas 

Diversion Program, a diversion program allegedly created by the court. Once again, the State 

has failed to provide this Court with any documentation regarding such a program. As the lead 

opinion accurately concludes, without such documentation in the record, we must affirm. 

CARR, P. J. 

DISSENTING.

{¶10} I respectfully dissent. I would hold that the Lorain County Common Pleas 

Diversion Program is unconstitutional as it violates the separation of powers doctrine. The trial 

court’s diversion program infringes on the power of the legislative branch to establish crimes and 

punishments, as well as the power of the executive branch to choose how to prosecute offenders. 

{¶11} The Supreme Court of Ohio has stated, “It has long been recognized in this state 

that the General Assembly has the plenary power to prescribe crimes and fix penalties.” State v. 

Morris, 55 Ohio St.2d 101, 112 (1978), citing Municipal Court v. State ex rel. Platter, 126 Ohio 

St. 103 (1933). This Court has observed that allowing a sentencing court to operate outside the 

confines of legislative mandates would be to reject not only the collective wisdom of the 

legislature, but also the authority of the citizenry itself. State v. Wright, 9th Dist. Medina No. 

2371-M, 1995 WL 404964 (June 28, 1995), citing Harmelin v. Michigan, 501 U.S. 957, 1006 
6 

 

(1991) (Kennedy, J., concurring). This Court has emphasized that “the authority to define and 

fix the punishment for a crime belongs indisputably to the legislature.” State v. Woods, 9th Dist. 

Medina No. 2376-M, 1995 WL 434374 (July 19, 1995), quoting Ex Parte United States, 242 

U.S. 27, 42 (1947). Because of the paramount role the legislature plays in framing the 

boundaries for criminal sentencing, “state trial judges and magistrates do not have inherent or 

statutory power to set aside legislatively enacted sentences. The discretionary power of judges to 

sentence is granted by the legislature and can be circumscribed by the legislature.” Woods, 

citing Cleveland v. Scott, 8 Ohio App.3d 358, 359 (8th Dist.1983). 

{¶12} It follows that the power to authorize formal pretrial diversion programs is a 

legislative power. The creation of pretrial diversion programs is not a natural outgrowth of the 

charging function, but instead represents a shift in how a state responds to the challenge of crime.

Polikov v. Neth, 270 Neb. 29, 39 (2005). As the Supreme Court of Nebraska has recognized, the 

authorization of pretrial diversion programs is “the type of broad restructuring of the goals of the 

criminal justice system that is entrusted to the Legislature rather than to the executive branch.” 

Id. Therefore, when a prosecutor’s office maintains a pretrial diversion program, it may do so 

only to the extent that the legislature has specifically delegated that authority. In Ohio, the 

General Assembly has given that authority to prosecuting attorneys by virtue of the enactment of 

R.C. 2935.36, which states “[t]he prosecuting attorney may establish pre-trial diversion programs 

for adults who are accused of committing criminal offenses and whom the prosecuting attorney 

believes probably will not offend again.” There is no language in R.C. 2935.36 by which the 

General Assembly has granted authority to trial courts to create similar pretrial diversion 

programs. Thus, the trial court in this case acted without authority when it created and utilized 
7 

 

its own pretrial diversion program, independent from the pretrial diversion program created by 

the prosecuting attorney pursuant to R.C. 2935.36. 

{¶13} Moreover, when the legislature has granted authority to the prosecuting attorney 

to maintain a pretrial diversion program, the judiciary violates the separation of powers doctrine 

when it attempts to usurp that authority. “The administration of justice by the judicial branch of 

the government cannot be impeded by the other branches of the government in the exercise of 

their respective powers.” Woods v. Telb, 89 Ohio St.3d 504, 511 (2000), quoting State ex rel 

Johnston v. Taulbee, 66 Ohio St.2d 417 (1981), paragraph one of the syllabus. But the judicial 

branch must also respect the boundaries set on its powers, including the executive branch’s 

authority to prosecute criminal offenses. This Court has previously held that a trial court violates 

the constitutional concept of separation of powers when it “[takes] the administrative and 

executive decision of whether to prosecute [a] defendant away from the prosecuting attorney and 

terminate[s] the criminal prosecution without the consent of the prosecutor.” State v. Curry, 134 

Ohio App.3d 113, 118 (9th Dist.1999). Under similar circumstances, the Fifth District held that 

“it violates the constitutional concept of separation of powers for any judge to take the 

administrative and executive decision whether or not to proceed with prosecution away from the 

prosecuting attorney, and elect either to delay, defer, divert or terminate a criminal prosecution 

without the prosecutor’s consent pre-trial.” Ontario v. Shoenfelt, 5th Dist. Richland No. 

CA2302, 1985 WL 8284 (July 30, 1985). The Fifth District has further recognized that the trial 

court “merely performs an administrative function” in a pretrial diversion program maintained by 

the prosecutor pursuant to R.C. 2935.36, and that “to cross over the line and determine 

successful completion at termination would blur the line between the judicial and executive 

branches.” State v. Goodman, 5th Dist. Licking No. 2007CA00064, 2009-Ohio-979, ¶ 20. 
8 

 

There is no language in the Ohio Constitution granting trial courts the authority to maintain a 

pretrial diversion program. Article IV, Section 4, Ohio Constitution, which governs the 

organization and jurisdiction of common pleas courts, and Article IV, Section 18, Ohio 

Constitution, which governs powers and jurisdiction of judges, are devoid of any language 

granting the trial court the authority to create a pretrial diversion program.1 

{¶14} Here, Davis was indicted on three felony charges on December 2, 2010. Davis 

then successfully petitioned the trial court for acceptance into the trial court’s pretrial diversion 

program over the vigorous objection of the State. In order to be admitted to the trial court’s 

diversion program, Davis entered guilty pleas to the charges in the indictment. Subsequently, the 

trial court made an independent determination that Davis had completed its diversion program, 

and issued an order dismissing the charges in the indictment. Thus, the trial court took the 

executive decision of whether to prosecute Davis away from the prosecuting attorney, and 

terminated the criminal prosecution without the consent of the prosecutor. I would conclude that 

usurping the role of the prosecutor in this manner violates the doctrine of separation of powers. 

Curry, 134 Ohio App.3d at 118. 

{¶15} The Supreme Court of Ohio has long held, “‘The essential principle underlying 

the policy of the division of powers of government into three departments is that powers properly 

belonging to one of the departments ought not to be directly and completely administered by 

either of the other departments, and further that none of them ought to possess directly or 

indirectly an overruling influence over the others.’” State ex rel. Bray v. Russell, 89 Ohio St.3d 

 

1

 While Article 4, Section 18, Ohio Constitution does state that common pleas judges “shall * * * 

have and exercise such power and jurisdiction * * * as may be directed by law,” the General 

Assembly’s enactment of R.C. 2935.36 granted authority to create a pretrial diversion program to 

the prosecuting attorney, not the common pleas judges. 
9 

 

132, 134 (2000), quoting State ex rel. Bryant v. Akron Metro. Park Dist. 120 Ohio St. 464, 473 

(1929). In creating and maintaining the Lorain County 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. For these 

reasons, I would hold that the Lorain County Pretrial Diversion Program violates the separation 

of powers doctrine. 

APPEARANCES:

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant 

Prosecuting Attorney, for Appellant. 

JACK W. BRADLEY and MALLORY J. HOLMES, Attorneys at Law, for Appellee.