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First-time offenders in the criminal justice system are often scared, confused, and uncertain of what may happen to them. This is understandable as the court system can seem like a mystifying process filled with confusing language and rules. For most young offenders, their only experience with the court process might be through watching inaccurate courtroom procedural dramas on television. The good news is in some cases, a first-time offender might have the opportunity for a “do-over” of sorts.
Many courts in Ohio have established programs known as “diversion” or “discretionary rehabilitation” for first-time, non-violent offenders who meet certain criteria. These programs are typically created through the office of the prosecuting attorney and are directed at adults who are accused of committing criminal offenses and whom the prosecuting attorney believes probably will not offend again. R.C. 2935.36(A).
The prosecuting attorney may require, as a condition of an accused’s participation in the program, the accused to pay a reasonable fee for supervision services that include monitoring, possible drug testing, and other conditions. Id. Diversionary programs are operated pursuant to written standards approved by journal entry by the presiding judge or, in courts with only one judge, the judge of the court of common pleas. Id.
Diversion programs are targeted towards first-time, non-violent offenders. It must be your first offense to qualify for a program except for any minor misdemeanor traffic offenses. The court will also run a background check to confirm this.
In most cases, a juvenile record will not bar eligibility. However, repeat offenders and dangerous offenders are ineligible to apply for diversion. R.C. 2935.36(A)(1). In addition, most charges related to sex offenses, burglary offenses, manslaughter, child endangerment, weapons offenses, and offenses against administration of justice are ineligible for a diversion plea. Id.
However, the prosecuting attorney may allow persons accused of violent or other ineligible offenses to enter diversion when: (a) the accused did not cause, threaten, or intend serious physical harm to any person; (b) the offense was the result of circumstances not likely to recur; (c) the accused has no history of prior delinquency or criminal activity; (d) the accused has led a law-abiding life for a substantial time before commission of the alleged offense; and (e) substantial grounds tending to excuse or justify the alleged offense. R.C. 2935.36(A)(2)(a) – (e).
Many drug offenses under Chapter 2925 or 3719 of Ohio Revised Code are also ineligible for a diversion plea. R.C. 2935.36(A)(3). However, persons accused of possessing marijuana or marijuana paraphernalia are typically allowed to enter a diversion program. Drug offenses involving controlled substances, drug instruments, drug manufacturing, or trafficking are usually barred from a diversionary resolution.
Diversion is also not available for operating a vehicle while intoxicated (OVI) or while under the influence of drugs or alcohol. R.C. 2935.36(A)(4). Persons who hold a commercial driver’s license (CDL) and are accused of any disqualifying or sanctionable offense are also not eligible to enter diversion. R.C. 2935.36(A)(5)(a).
So, we’ve covered who is and isn’t eligible for diversion. Now what is required to enter a diversion program?
An accused applicant must first waive, in writing and contingent upon the accused’s successful completion of the program, the accused’s right to a speedy trial, the preliminary hearing, the time within which the grand jury may consider an indictment against the accused, and arraignment, unless the hearing, indictment, or arraignment has already occurred. R.C. 2935.36(B)(1). These are important rights that normally require the State to establish probable cause to justify bringing an accused person to stand trial and to hold that trial within a defined, statutory time depending on the degree of offense.
You must also enter a guilty plea to the charges to qualify for diversion. The judge then agrees to hold the plea in abeyance pending your successful completion of the program. However, by entering a guilty plea you forfeit the right to trial including the right to subpoena and cross-examine all adverse witnesses and the right to require the State to prove your guilt beyond a reasonable doubt.
So, if you fail to complete the program for any reason (including picking up a new charge), the judge may sentence you to up to the maximum penalty for the offense without an opportunity to contest the charges. Since you are required to plead guilty, it’s a good idea to speak with a criminal defense attorney beforehand to discuss any possible civil ramifications of the plea as a guilty plea can be used as evidence against you in any subsequent civil case.
The applicant must also agree in writing to waive any time requirements for all periods of limitation established either by statutes or rules of court, that are applicable to the charged offense and must also agree to the conditions of the diversion program as established by the prosecuting attorney. 2935.36(B)(2). A diversion applicant also agrees to pay any reasonable fee for supervision services established by the prosecuting attorney. 2935.36(B)(3). Sometimes a day of community service work is available in lieu of paying the fee which can sometimes be in the range of a few hundred dollars.
After you are approved to enter diversion, the trial court, upon the application of the prosecuting attorney, will order the release from confinement of the accused person who has agreed to enter the pre-trial diversion program. 2935.36(C). The court will also discharge and release any existing bail and release any sureties on recognizances and will release the accused on a recognizance bond conditioned upon the accused’s compliance with the terms of the diversion program. Id. The prosecuting attorney must also notify every victim of the crime and the arresting officers of the prosecuting attorney’s intent to permit the accused to enter the pre-trial diversion program. Id. The victim of the crime and the arresting officers also can file any written objection with the prosecuting attorney before the commencement of the pre-trial diversion program. Id.
Your successful completion of a diversion programs requires a commitment on your part. You will probably be required to attend classes related to substance abuse, anger management, or decision making. Furthermore, you will probably have to complete at least one day of community service work (in additional to any work performed to satisfy the fee for diversion). Lastly, there is usually an additional requirement of attending a graduation session which the judge and prosecutor may also attend.
If the accused satisfactorily completes the diversion program, the prosecuting attorney shall recommend to the trial court that the charges against the accused be dismissed, and the court, upon the recommendation of the prosecuting attorney, shall dismiss the charges. 2935.36(D).
Before entering the program, you should seriously evaluate whether you will successfully complete the program because failing to attend the classes or performing community service can lead to a warrant issued for your arrest. Additionally, picking up a new charge can cause you to be sentenced on the original charge, plus incur additional penalties for the new offense! You also should avoid entering diversion if you believe there are any potential defenses to your charge. For instance, if the charge resulted from improper seizure of evidence based on a violation of your Constitutional rights, you should probably speak with an attorney before entering a guilty plea.
You should also be aware that even though completing diversion means your case will be dismissed and the record will be sealed, there may be times when you are required to disclose your criminal record. For example, if you aspire to follow a certain career path such as becoming a nurse, lawyer or teacher, joining the military, or obtaining a security clearance, you will have to disclose all record of the offense and the fact that you entered a diversion program. Additionally, courts and law enforcement can still view the record, although the public may find it more difficult to access.
To conclude, diversion is an excellent opportunity for first-time, non-violent offenders who do not anticipate any future involvement with the criminal justice system. The program gives first-time offenders, often younger persons, a second chance to avoid a stained record that can cause problems finding employment and limit other opportunities.
The Migdal Law Firm LLC in Akron, Ohio provides criminal defense representation across Ohio for all misdemeanor, felony, and traffic offenses. If you believe you might be eligible for a diversion program, please contact our firm at 234-206-1865 for a free consultation.