State v. Bales , 195 Ohio App. 3d 538 ( 2011 )

[Cite as State v. Bales, 195 Ohio App.3d 538, 2011-Ohio-5336.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
THE STATE OF OHIO, C.A. No. 10CA009943
Appellant,
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BALES, COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellee, CASE No. 10CR080176
DECISION AND JOURNAL ENTRY
Dated: October 17, 2011
Dennis P. Will, Lorain County Prosecuting Attorney, and Billie Jo Belcher, Assistant
Prosecuting Attorney, for appellant.
Denise G. Wilms, for appellee.
DICKINSON, Judge.
INTRODUCTION
{¶1} The Lorain County Grand Jury indicted Todd Bales for felonious assault, and he
moved the trial court for acceptance into the Lorain County Common Pleas Court Diversion
Program. On the day of the hearing, the state opposed the motion in writing and objected on the
record during the hearing. After the trial court accepted Bales’s guilty plea and approved his
application for the program, the prosecutor attempted to appeal the decision as a matter of right
under Section 2953.08(B), arguing that “Bales’ sentence is contrary to law” because the Lorain
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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. The
attempted appeal is dismissed because the state has not properly invoked this court’s jurisdiction.
JURISDICTION
{¶2} This court is required to raise sua sponte issues regarding our jurisdiction.
Whitaker-Merrell Co. v. Geupel Constr. Co. (1972), 29 Ohio St.2d 184, 186. Article IV, Section
3(B)(2) of the Ohio Constitution grants courts of appeals “such jurisdiction as may be provided
by law to review and affirm, modify, or reverse judgments or final orders[.]” In this case, the
state has attempted to appeal the trial court’s order as a matter of right under R.C. 2953.08(B)(2).
Under that provision, “a prosecuting attorney * * * may appeal as a matter of right a sentence
imposed upon a defendant who is convicted of or pleads guilty to a felony * * * on * * * the
* * * ground[ ] [that] * * * [t]he sentence is contrary to law.” The General Assembly has also
granted this court jurisdiction to consider state’s appeals as of right regarding “any decision of a
trial court in a criminal case * * * which * * * grants a motion to dismiss all or any part of any
indictment, complaint, or information, a motion to suppress evidence, or a motion for the return
of seized property or grants post conviction relief[.]” R.C. 2945.67(A). The state may seek
leave to appeal “any other decision, except the final verdict, of the trial court in a criminal
case[.]” Id.{¶3} In this case, the state has attempted to appeal under R.C. 2953.08(B), arguing that
the trial court’s referral of Bales to the diversion program is a sentence that is contrary to law.
Under R.C. 2929.01(EE), “ ‘[s]entence’ means the sanction or combination of sanctions imposed
by the sentencing court on an offender who is convicted of or pleads guilty to an offense.” R.C.
2929.01(DD) defines “[s]anction” as “any penalty imposed upon an offender who is convicted of
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or pleads guilty to an offense, as punishment for the offense. ‘Sanction’ includes any sanction
imposed pursuant to any provision of sections 2929.14 to 2929.18 or 2929.24 to 2929.28 of the
Revised Code.” Sections 2929.14 through 2929.18 address felony sentencing options, including
prison terms, community control sanctions, community residential sanctions, nonresidential
sanctions, and financial sanctions. Sections 2929.24 through 2929.28 cover sanctions available
for punishment of misdemeanors. None of these code provisions address pretrial diversion
programs. Diversion programs are not sanctions imposed as punishment following conviction.
Diversion programs are intended to offer the defendant an opportunity to avoid conviction and
punishment for the crime charged.
{¶4} Under Crim.R. 32(A), when a trial court imposes a sentence, it must offer the
prosecutor and the defendant’s lawyer an opportunity to speak. It must also give the defendant
an opportunity to make a statement on his own behalf or present information in mitigation of
punishment. Crim.R. 32(A). The trial court did not do any of those things when it approved
Bales’s application for diversion.
{¶5} On the day of the hearing on Bales’s motion for acceptance into the pretrial
diversion program, the trial court accepted his guilty plea and entered an order indicating that it
“[found] Bales guilty and [referred him] to the court’s diversion program.” The trial court did
not purport to “sentence” Bales via its November 12, 2010 entry. On the same day, the trial
court entered a separate “Order to Diversion Program.” In that order, the trial court indicated
that Bales’s application for diversion and his guilty plea had been accepted and gave him one
year to complete the program. In the order, the trial court explained that “any failure by
defendant to follow the rules of the Diversion Program will result in defendant’s removal from
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the Program, defendant being found guilty of the indictment and defendant’s appearance in court
for sentencing.”
{¶6} The trial court granted Bales’s request to enter the program and warned him that if
he did not successfully complete it, he would be “found guilty of the indictment and * * * [would
have to] appear * * * in court for sentencing.” Under R.C. 2953.08(B), the state may appeal as a
matter of right “a sentence imposed upon a defendant[.]” R.C. 2953.08(B) does not authorize the
state to appeal the trial court’s November 12, 2010 entries, because those entries do not impose a
sentence. Even if the state had cited R.C. 2945.67(A) in its notice of appeal, it would have been
required to seek leave of this court to appeal the trial court’s decision to refer Bales to a pretrial
diversion program. Because the state failed to seek leave to appeal, this court does not have
jurisdiction to consider the merits of the appeal in this case. The appeal is dismissed.
CONCLUSION
{¶7} The state has not properly invoked this court’s jurisdiction. Accordingly, the
appeal is dismissed.
Appeal dismissed.
BELFANCE, P.J., and WHITMORE, J., concur.
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