Case Law on Diversion

Eligibility and Admission

Role of the Prosecutor in Relation to the Court

  • Flynt v. Commonwealth and Commonwealth v. Elliott, 105 S.W.3d 415, Supreme Court of Kentucky (2003) – The Commonwealth must give its consent before the court has the authority to approve a pretrial diversion application.
  • Tennessee v. Yancey, 69 S.W.3d 553, Tennessee Supreme Court (2002) – In reviewing the prosecutor’s decision to deny diversion, “the trial court must not re-weigh the evidence, but must consider whether the district attorney general has weighed and considered all of the relevant factors and whether there is substantial evidence in the record to support the district attorney general’s reasons for denying diversion.”
  • Clayton v. Lacy, 589 N.W.2d. Nebraska Supreme Court (1999) – The trial court does not have jurisdiction over a prosecutor’s decision to deny admission to pretrial diversion.
  • State v. Tootle, 500 S.E.2d 481, South Carolina Supreme Court (1998) – The chief administrative judge does not have the authority to admit an applicant to pretrial intervention over the objections of the prosecutor.
  • State v. Pinkham, 955 S.W. 2d 956, Tennessee Supreme Court (1997) – If the prosecutor denies pretrial diversion, reasons for the denial must be in writing and must include “an enumeration of the evidence that was considered and a discussion of the factors considered and weight accorded each.”
  • Cleveland v. State, 417 So.2d 653, Florida Supreme Court (1982) – The trial court cannot review the prosecutor’s decision to deny admission to pretrial diversion.
  • State v. Hammersly, 650 S.W.2d 352, Tennessee Supreme Court (1983) – In determining whether to admit a defendant into pretrial diversion, the prosecutor must take into account the circumstances of the offense, the defendant’s criminal record, social history, the physical and mental condition of the defendant, and the likelihood that diversion will serve the ends of justice and the best interests of the public and the defendant.
  • Stark v. Sutton, 80 N.J. 110, New Jersey Supreme Court (1979) – Prosecutors’ decisions regarding admission to pretrial intervention must be “individualistic in nature,” taking into account an individual defendant’s features that bear upon amenability to rehabilitation.
  • State v. Leonardis, 375 A.2d 607, New Jersey Supreme Court (1977) – The trial court has the authority to admit a defendant to pretrial intervention over the objections of the prosecutor, but only after determining that the prosecutor abused his discretion in denying the application.
  • State v. Leonardis, 363 A.2d 321, New Jersey Supreme Court (1976) – While the charge should be a major consideration in the admissions decision, prosecutors cannot reject an application based solely on the charge.
  • People v. Superior Court (On Tai Ho), California Supreme Court (1974) – The prosecutor does not have veto authority over the court’s decision to place a defendant into pretrial diversion.

 Equal Protection

  • Lamont v. Indiana, 852 N.E.2d 1002, Court of Appeals of Indiana (2006) – The unavailability of a pretrial diversion in a particular county does not deny a defendant equal protection just because other counties in the state have such programs.
  • State v. Hoernemann, 1998 Minn.App. LEXIS 916, Minnesota Court of Appeals (1998) – The prosecutor may have a diversion program for prostitutes and not have one for their patrons.
  • Federov v. U.S., 600 A.2d 370, District of Columbia Court of Appeals (1991) – The prosecutor has the burden of rebutting the appellants’ showing of selective prosecution when appellants were denied admission to pretrial diversion after being charged with unlawful entry while exercising their First Amendment rights to political speech.
  • State v. Rutledge, 1981 Ohio App. LEXIS, Second District Court of Appeals of Ohio (1981) – The prosecutor’s policy to exclude from diversion all persons charged with welfare fraud allegedly occurring over six months does not violate equal protection.
  • State v. Greenlee, 620 P.2d 1132, Supreme Court of Kansas (1980) – It does not violate equal protection for a prosecutor to have a policy denying pretrial diversion to all persons charged with drug offenses.
     

Payment of a Fee as Eligibility Criterion

  • Mueller and Evans v. Indiana, 837 N.E. 2d 198, Court of Appeals of Indiana (2005) – A defendant cannot be denied admission to a pretrial diversion program solely due to inability to pay program fees.
  • Commonwealth v. Melnyk, Pa SuperCt, No. 1681, Pennsylvania Superior Court (1988) – Excluding a defendant from diversion due solely to inability to pay program fees in unconstitutional.

Enrollment  

  • Ludd v. State, 2005 Tex.App. LEXIS 2233, Fifth District Court of Appeals of Texas (2005) – The record shows that the defendant knowingly and intelligently waived her right to an attorney before agreeing to enroll in a diversion program, so her admission of guilt as part of the enrollment process should not be suppressed just because it was made without an attorney being present.
  • Neshewat v. Salem, 1999 Fed App. 0119P, C.A. 6, U.S. Court of Appeals for the Sixth Circuit (1999) – Since participation in the pretrial diversion program was an implicit admission of guilt, the defendant cannot later charge the complaining witness with injurious falsehood.
  • Jordan v. Deese, 317 S.C. 260, South Carolina Supreme Court (1995) – A defendant who enrolls in pretrial intervention cannot later file suit against the complaining witnesses for malicious prosecution because dismissal of charges upon successful completion of pretrial intervention is not a result that is in the participant’s favor.
  • State v. Watters, 594 So.2d 242, Alabama Court of Criminal Appeals (1992) – A statement made by the defendant upon enrollment in a pretrial diversion program can be used against the defendant at trial after failing in diversion because the defendant had been advised that this might happen. 

Terms of Diversion Agreement

  • Polikov v. Neth, 699 N.W. 2d 802, Nebraska Supreme Court (2005) – It does not interfere with the prosecutor’s authority under separation of powers for the legislature to establish minimum conditions for the completion of pretrial diversion.
  • Petty v. City of El Dorado, 19 P.3d 167, Kansas Supreme Court (2001) – A diversion participant cannot be required to serve a short jail term as part of a pretrial diversion agreement.
  • Frederick v. Justice Court, 47 Cal.App.3d 687, Second Appellate District Court of Appeals of California (1975) – The court does not have the authority to add as a condition to its diversion order that the defendant waive his Fourth Amendment search and seizure rights.

Dismissal

Consent of the Prosecutor

  • State v. Allen, 346 N.J. Super. 71, Superior Court of New Jersey, Appellate Division (2001) – The court can dismiss the charges upon successful completion of pretrial intervention without the consent of the prosecutor because to compel the participant to stand trial after completing the program would be a denial of essential fairness.
  • State v. Curry, 730 N.E.2d 435, Ninth District Court of Appeals of Ohio (1999) – The trial court violated separation of powers when it dismissed a charge upon successful completion of diversion without the consent of the prosecutor.

Expunction of Record  

  • Commonwealth v. Shouse, 183 S.W. 3d 204, Kentucky Court of Appeals (2006) – It is clear that the legislature intended to allow persons who have successfully completed diversion to have their record expunged.
  • State v. J.Y.M., 711 N.W. 2d 139, Minnesota Court of Appeals (2006) – Since the defendant pleaded guilty as part of the enrollment process into a diversion program, the case was not resolved in his favor, for the purposes of the expunction statute, when it was dismissed after he successfully completed the diversion program.
  • Texas Department of Public Safety v. Solis, 2005 Tex.App. LEXIS 9553 (2005) – Since there was no evidence that the charge was dismissed due to lack of probable cause, there was no basis for expunging the record of a person after completing pretrial diversion.
  • State v. Andrasek, 2003-Ohio-32, Eighth District Court of Appeals of Ohio (2003) – Absent an overriding governmental need to maintain the record, the court must approve a participant’s request to have the record sealed after she has successfully completed pretrial diversion.

Double Jeopardy

  • Ragard v. U.S., 439 F.3d 1378, U.S. Court of Appeals for the Federal Circuit (2006) – A member of the U.S. Military can be court martialled for the same behavior for which he was placed in and successfully completed diversion in a local court.
  • State v. Urvan, 446 N.E.2d 1161, Eighth Appellate District Court of Appeals of Ohio (1982) – It is a violation of double jeopardy to prosecute a defendant in one county after he successfully completed pretrial diversion in another county for an offense that spanned both counties.


Failure to Complete Diversion

Rearrest

  • Jameson v. Commonwealth, WL 387861, Ky.App., Court of Appeals of Kentucky (2005) – A participant in pretrial diversion status is awaiting trial for the purposes of a Kentucky law requiring consecutive sentences for defendants who are rearrested while having a case pending.
  • State v. Dawber, 659 N.W. 2d 507, Wisconsin Court of Appeals (2003) – Diversion can be revoked upon a rearrest based on a probable cause determination at the initial appearance for the rearrest charge.

Right to a Diversion Termination Hearing  

  • Duerloo v. State, 690 N.E. 1210, Fifth District Court of Appeals of Indiana (1998) – Because her liberty interests were not at stake, a participant in a pretrial diversion program does not have the right to an evidentiary hearing when being terminated from the program for non-compliance.
  • Wood v. U.S., 622 A.2d 67, District of Columbia Court of Appeals (1993) – A defendant who was terminated from diversion for making false statements on his diversion application does not have a right to a hearing on his termination.
  • State v. Marino, 674 P.2d 171, Washington Supreme Court (1984) – A pretrial diversion participant has a due process right to a hearing to review a prosecutor’s decision to terminate pretrial diversion.
  • State ex rel Harmon v. Blanding, 644 P.2d 1082, Oregon Supreme Court (1982) – While a hearing may not be necessary when a prosecutor decides to terminate diversion for non-compliance, the court must confirm that the prosecutor has made a finding of non-compliance, and has a reasonable basis for that finding.

Revocation of Diversion for Inability to Pay Restitution

  • State v. Jimenez, 810 P.2d 801, New Mexico Supreme Court (1991) – Before terminating diversion due solely to the inability to meet restitution requirements, the court must determine whether any alternatives exist that would serve the state’s interests in carrying out an effective pretrial diversion program.

Use of Diversion Information in Subsequent Proceedings

  • Estate of Alfred Wooden v. Hunnicutt, WL 2546918, Tenn.Ct.App, Tennessee Court of Appeals (2005) – Information pertaining to a witness’ prior placement in pretrial diversion can be raised in cross-examination to impeach the credibility of the witness in a chancery court hearing on a dispute over a signature on a Quitclaim Deed
  • State v. Daoud, 2003 Ohio 676, Second Appellate District Court of Appeals of Ohio (2003) – The trial court erred when it allowed statements made by the defendant during screening for pretrial diversion to be used to impeach the defendant’s credibility at his trial.
  • State v. Kern, 325 N.J. Super. 435 (1999) – The trial court erred when it allowed into evidence at trial an incriminating statement made in court by the defendant at a hearing on her rejected application for the pretrial intervention program.
  • U.S. v. Maass, 1997 U.S.App. LEXIS 36140, U.S. Court of Appeals for the Tenth Circuit(1997) – It did not constitute plain error when the prosecutor introduced previous pretrial diversion agreements as evidence at a defendant’s trial on similar charges.
  • Pizzillo v. Pizzillo, 884 S.W.2d 749, Court of Appeals of Tennessee (1994) – An admission made to prosecutors as part of the enrollment process to pretrial diversion can be used by the probate court in determining child visitation rights.
  • In re Holtgreven, 620 N.E. 2d 310, Court of Claims of Ohio (1993) – A crime victim’s earlier participation in a pretrial diversion program constitutes evidence of felonious conduct for the purposes of determining eligibility for an award from the victim’s reparations fund.

 

 

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