State v. Bales

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[Cite as State v. Bales, 2011-Ohio-5336.] STATE OF OHIO COUNTY OF LORAIN ) )ss: ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT STATE OF OHIO C.A. No. 10CA009943 Appellant v. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10CR080176 TODD M. BALES Appellee DECISION AND JOURNAL ENTRY Dated: October 17, 2011 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 Mr. Bales 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 [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 Section 2935.36 of the Ohio Revised Code and the constitutional concept of separation of powers. The attempted appeal is dismissed because the State has not properly invoked this Court s jurisdiction. 2 JURISDICTION {¶2} This Court is required to raise sua sponte issues regarding our jurisdiction. Whitaker-Merrell Co. v. Geupal Constr. Co., 29 Ohio St. 2d 184, 186 (1972). 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 Section 2953.08(B)(2) of the Ohio Revised Code. 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 Section 2953.08(B), arguing that the trial court s referral of Mr. Bales to the diversion program is a sentence that is contrary to law. Under Section 2929.01(EE) of the Ohio Revised Code, [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. Section 2929.01(DD) defines [s]anction as any penalty imposed upon an offender who is convicted of 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 3 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 Rule 32(A) of the Ohio Rules of Criminal Procedure, 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 Mr. Bales application for diversion. {¶5} On the day of the hearing on Mr. Bales Motion for Acceptance into Pretrial Diversion Program, the trial court accepted his guilty plea and entered an order indicating that it finds Mr. Bales guilty and refers [him] to the court s diversion program. The trial court did not purport to sentence Mr. 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 Mr. Bales 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 the Program, defendant being found guilty of the indictment and defendant s appearance in court for sentencing. {¶6} The trial court granted Mr. Bales 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 . . . 4 [would have to] appear[ ] in court for sentencing. Under Section 2953.08(B), the State may appeal as a matter of right a sentence imposed upon a defendant[.] Section 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 Section 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 Mr. Bales to a pretrial diversion program. As 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. 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(E). 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. 5 Costs taxed to Appellant. CLAIR E. DICKINSON FOR THE COURT BELFANCE, P. J. WHITMORE, J. CONCUR APPEARANCES: DENNIS P. WILL, Proecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting Attorney, for Appellant. DENISE G. WILMS, Attorney at Law, for Appellee.

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