November 22, 2014

Elyria
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Appeals court backs prosecutor, nixes judges’ diversion program

ELYRIA — A controversial diversion program run by Lorain County’s General Division judges has been ruled unconstitutional by the 9th District Court of Appeals.

In a decision released Monday, the appeals court concluded that the judges’ program, created in April 2010, violated state law and the concept of separation of powers.

“In creating and maintaining the Lorain County Court of Common Pleas General Diversion 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,” the decision said.

County Prosecutor Dennis Will has long opposed the judges’ diversion program, but previous attempts to get the appeals court to determine whether the program was legal have been unsuccessful.

That led Will, who operates his own diversion program, to ask the Ohio Supreme Court in April to intervene in the dispute and declare the judicial diversion program illegal because in his view state law only allows for prosecutors to run diversion programs.

“We have made the same argument consistently,” Will said.

The county’s judges have argued in court filings that Will should have waited for the appeals court to decide the issue rather than involving the Supreme Court.

Administrative Judge James Burge, who declined comment Monday, has previously said the judges created their diversion program because they didn’t believe Will’s program was fair because it effectively gave victims veto power over whether defendants should receive diversion.

That led to people facing the same charges receiving different outcomes in their cases depending on who their victims were, Burge has said. A person who receives diversion has the charges against them dropped after successfully completing the program.

Will has said it’s proper for victims to have a say in what happens to the criminals who victimized them.

Will also said that even though the 9th District has now ruled on the issue of the judicial diversion program, he believes the case pending in the Supreme Court will still go.

“I don’t think that makes it moot,” he said, noting that Monday’s decision could still be appealed to the state’s highest court.

Elyria attorney Jeff Brown said that’s exactly what he hopes his client, Wayne Dopart, will do, although he has yet to discuss the appeals court ruling with him.

In the challenge to the diversion program filed earlier this year, Will’s office wrote that there have been roughly 20 people admitted to the judicial program since it was created. It was unclear Monday exactly how many of those cases have already survived the appeals court.

But for those who haven’t, it spells the end of their placement in the diversion program, which means those defendants will find themselves once again facing criminal charges, Brown said. In Dopart’s case, he will find himself facing charges of theft, tampering with records, Medicaid eligibility fraud and falsification.

One of the three appeals court judges on the case dissented from Monday’s decision, although she too would have reversed the decision of county Common Pleas Judge John Miraldi to dismiss the charges against Dopart after he completed the diversion program.

Judge Carla Moore wrote that there was no need for the appeals court to weigh in on the constitutionality of the judges’ diversion program because Miraldi improperly dismissed the case against Dopart under a law allowing intervention in lieu of conviction rather than the diversion law.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com. Follow him on Twitter @BradDickenCT.


  • golfingirl

    Burge says the prosecutor’s program was unfair because it………”effectively gave victims veto power over whether defendants should receive diversion.”

    The victims should always have input in the penalty the criminal who harms them receives.

    Such a “radical” idea simply gets in the way of Burge’s lenient sentencing.

  • Ron Paulyes

    this case is proof – judges legislating from the bench very common thing. would love to see more prosecutors prosecuting judges and other sbag lawyers for violating the constitution. the violating judges in this case should be sanctioned fined fired disbarred and imprisoned. how can the remain on the bench when someone as simple as the constitution is violated.

  • stillsleepyeyes

    Oh burge is not going to like this………..