[Cite as State v. Sullivan-Eason,
2023-Ohio-862.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-22-038
Appellant Trial Court No. 2021 CR 0447
v.
Khauriee Sullivan-Eason DECISION AND JUDGMENT
Appellee Decided: March 17, 2023
…
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellant.
Henry Schaefer, for appellee.
…
SULEK, J.
{¶ 1} The state of Ohio appeals the judgment of the Erie County Court of
Common Pleas, which terminated appellee Khauriee Sullivan-Eason’s participation in a
pre-trial diversion program and dismissed the indictment with prejudice. For the reasons
that follow, we reverse.
I. Facts and Procedural Background
{¶ 2} On November 9, 2021, the Erie County Grand Jury entered a two-count
indictment against Sullivan-Eason, charging him with one count of carrying a concealed
weapon in violation of R.C. 2923.12(A)(2) and (F)(1), a felony of the fourth degree, and
one count of improperly handling firearms in a motor vehicle in violation of R.C.
2923.16(B) and (I), a felony of the fourth degree. Both counts contained a specification
for forfeiture of the firearm under R.C. 2941.1417(A). The charges arose from Sullivan-
Eason’s failure to inform police officers during a traffic stop that he was possessing a
loaded firearm.
{¶ 3} On July 27, 2022, Sullivan-Eason withdrew his initial plea of not guilty,
entered a plea of no contest to both counts, and agreed to forfeit the firearm. In exchange
for the plea, the state agreed to allow Sullivan-Eason to enter a prosecutor’s diversion
program pursuant to R.C. 2935.36. Although it appears to be understood by all parties,
the state did not specify that it would dismiss the indictment upon Sullivan-Eason’s
successful completion of the diversion program. At the plea hearing, the trial court
instructed Sullivan-Eason that:
[I]t will be the judgment and sentence of the Court today that you be
found amenable for the diversion program, placed on diversion for a period
of one year. Along with the standard conditions, the Court would order that
- I guess that you show proof of employment to your probation officer, and
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- or schooling or a combination thereof; order that you pay the Court costs;
forfeiture of the weapon; and if you - and then when all costs are paid, all
your financial matters are wrapped up the Court would entertain a motion
to terminate you as soon as possible from the diversion program. I just
don’t want this to mess up your opportunity to go to law school, and you’re
taking the LSAT. I don’t want this to interfere with that, okay?
…
So pay off your costs and you can be terminated from the diversion
program.
{¶ 4} Following the plea hearing, the trial court entered its judgment finding that
Sullivan-Eason had entered pleas of no contest to the charges, but withholding its finding
of guilt pending the successful completion of the diversion program. Regarding the
prosecutor’s diversion program, the trial court specified that
[Sullivan-Eason] shall be placed on the diversion program for a period of
one [1] year beginning July 27, 2022, under the supervision of the Adult
Probation Department and subject to the general conditions as heretofore
filed in this Court on December 10, 2021 and it is further conditioned that:
1. Defendant shall not leave the State of Ohio without first
obtaining prior written consent from the Adult Probation
Department;
3.
2. Defendant shall comply with all lawful Orders of the Adult
Probation Department;
3. Defendant shall obtain and maintain full-time verifiable
employment and shall show proof to the Adult Probation
Department;
4. Defendant shall not operate a motor vehicle prior to
showing proof of a valid driver’s license and insurance to the Erie
County Adult Probation Department.
The trial court ordered that “if the defendant successfully completes the period of
diversion, the Court shall enter a dismissal of the indictment.” Notably, the trial court’s
judgment entry did not reference in any way that the diversion program would be
completed when Sullivan-Eason paid his court costs.
{¶ 5} Approximately one week later, on August 4, 2022, Sullivan-Eason moved to
conclude the diversion program, noting that he had paid his court costs in full. Five days
later, on August 9, 2022, the trial court entered its judgment finding that Sullivan-Eason
had successfully completed the diversion program, which it determined based upon a
recommendation from the Adult Probation Department. The trial court ordered Sullivan-
Eason successfully discharged from the diversion program and dismissed the indictment
with prejudice.
4.
{¶ 6} Six days after the trial court entered its judgment, the state filed an
opposition to Sullivan-Eason’s motion to conclude the diversion program. In addition to
noting that it was not given 14 days to respond to Sullivan-Eason’s motion, the state
argued that R.C. 2935.36 does not grant authority to the Adult Probation Department to
recommend termination of a diversion program, and that only the prosecuting attorney
has that authority.
II. Assignments of Error
{¶ 7} The state timely appealed the trial court’s August 9, 2022 judgment, and
now presents two assignments of error for our review:
1. The trial court abused its discretion by dismissing the indictment
with prejudice without giving the State an opportunity to object, as
contemplated by Crim.R. 48(B), and without finding that Appellee had
been denied any constitutional or statutory rights.
2. The trial court exceeded its authority by dismissing the indictment
against Appellee where he had not successfully completed the diversion
program and without recommendation from the prosecuting attorney.
III. Analysis
{¶ 8} We will address the state’s assignments of error together as they are
interrelated. In general, the state contests the trial court’s dismissal of the indictment
against Sullivan-Eason with prejudice. The parties agree that a trial court’s dismissal of
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an indictment is reviewed for an abuse of discretion. State v. Busch, 76 Ohio St.3d 613,
615-616,
669 N.E.2d 1125 (1996). An abuse of discretion connotes that the trial court’s
attitude is unreasonable, arbitrary, or unconscionable. State v. Adams,
62 Ohio St.2d 151,
157,
404 N.E.2d 144 (1980). “It is to be expected that most instances of abuse of
discretion will result in decisions that are simply unreasonable, rather than decisions that
are unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553 N.E.2d 597 (1990); see also State v.
Miller,
2019-Ohio-3294,
141 N.E.3d 604, ¶ 19 (2d Dist.); State v. Flores, 6th Dist. Wood
No. WD-18-016,
2018-Ohio-3980, ¶ 7.
{¶ 9} Relevant here, two sources of authority allow the trial court to dismiss the
indictment against Sullivan-Eason.
{¶ 10} First, R.C. 2935.36(D) requires the trial court to dismiss the indictment if
Sullivan-Eason successfully completes the diversion program and the prosecuting
attorney recommends to the trial court that the charges be dismissed. Specifically, R.C.
2935.36(D) provides, “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.”
{¶ 11} Second, regardless of whether Sullivan-Eason successfully completes the
pre-trial diversion program, Crim.R. 48(B) provides a general authorization for the trial
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court to dismiss criminal actions. Crim.R. 48(B) provides, “If the court over objection of
the state dismisses an indictment, information, or complaint, it shall state on the record its
findings of fact and reasons for the dismissal.” The rule “recognizes by implication that
trial judges may sua sponte dismiss a criminal action over the objection of the
prosecution, since the rule sets forth the trial court’s procedure for doing so. The rule
does not limit the reasons for which a trial judge might dismiss a case, and … a judge
may dismiss a case pursuant to Crim.R. 48(B) if a dismissal serves the interests of
justice.” Busch at 615.
{¶ 12} In this case, the trial court appeared to dismiss the indictment pursuant to
R.C. 2935.36. In its judgment entry, the trial court found that “the Chief Adult Probation
Officer reported to the Court that the defendant, Khauriee Sullivan-Eason, has
successfully completed his diversion program according to the terms and conditions set
forth by the Court and recommends that the indictment pending against the defendant be
dismissed. The Court finds that said recommendation is well-taken.” Thus, the trial
court ordered Sullivan-Eason successfully discharged from diversion and dismissed the
indictment with prejudice.
{¶ 13} In its second assignment of error, the state argues that the trial court abused
its discretion when it dismissed the indictment pursuant to R.C. 2935.36 because the
prosecutor never recommended that the charges be dismissed.
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{¶ 14} R.C. 2935.36(A) gives the prosecuting attorney “the authority to establish
pretrial diversion programs that are to be operated pursuant to written standards that have
been approved by the common pleas court.” State v. Curry, 134 Ohio App.3d 113, 116,
730 N.E.2d 435 (9th Dist.1999). Specifically, the statute states: “The prosecuting
attorney may establish pre-trial diversion programs for adults who are accused of
committing criminal offenses and whom the prosecuting attorney believes probably will
not offend again.” R.C. 2935.36(A). Thus, “[t]he legislature vested the prosecuting
attorney with discretion regarding the determination of whether to prosecute an
individual who might be eligible for the diversionary programs.”
Curry at 116, citing
Cleveland v. Mosquito,
10 Ohio App.3d 239, 240,
461 N.E.2d 924 (8th Dist.1983).
Further, R.C. 2935.36(D) “appears to condition the court’s right to dismiss the charges on
a recommendation by the prosecutor.” Id. at 117, citing Ontario v. Shoenfelt, 5th Dist.
Richland No. CA 2302,
1985 WL 8284 (July 30, 1985) (“[T]he constitutional principle of
separation of powers places the authority to decide whether to proceed with criminal
prosecution exclusively within the power of the prosecuting attorney.”).
{¶ 15} Here, the prosecutor never recommended to dismiss the charges against
Sullivan-Eason because Sullivan-Eason only completed approximately one week of the
one-year diversion program. Rather than receiving the recommendation of the
prosecutor, the trial court based its decision upon the recommendation of the Adult
Probation Department. But the recommendation of the Adult Probation Department is
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not sufficient under the plain language of R.C. 2935.36(D), which provides that “the
court, upon the recommendation of the prosecuting attorney, shall dismiss the charges.”
(Emphasis added.). See State v. Battersby, 11th Dist. Lake No. 2007-L-023, 2008-Ohio-
836, ¶ 27 (defendant’s agreement with his probation officer to make a donation in lieu of
community service hours did not establish his completion of the diversion program
because the agreement “was not made with a prosecuting attorney or court approval.”
(Emphasis sic.)). Therefore, the trial court’s dismissal of the indictment under R.C.
2935.36 without the recommendation of the prosecutor was unreasonable and constituted
an abuse of discretion.
{¶ 16} Moreover, even if the trial court’s dismissal of the indictment was pursuant
to its general authority under Crim.R. 48(B), the manner in which the trial court exercised
that authority in this case constituted an abuse of discretion.
{¶ 17} In Huron v. Slauterbeck, 2015-Ohio-5022,
53 N.E.3d 837, ¶ 8 (6th Dist.),
this court examined Crim.R. 48(B), and noted that “[t]he language expressly authorizing
a trial court dismissal of a pending criminal complaint such as the one underlying this
case incorporates language clearly envisioning the awareness and participation of the
state in the dismissal process.” In that case, the trial court, on its own initiative and
outside the presence of the parties, reviewed a video recording of the alleged traffic
offense prior to the defendant’s arraignment. Id. at ¶ 5. Thereafter, at the arraignment,
the trial court sua sponte dismissed the case, noting that the video showed the offense
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“obviously” did not involve the defendant’s car. Id. However, the prosecution “was not
notified that the matter was potentially being dismissed at that time, was not present
when it occurred, and lacked an opportunity to consider objecting prior to the dismissal.”
Id. On appeal, this court reversed the trial court’s dismissal of the offense, reasoning that
“Crim.R. 48 caselaw reflects judicial recognition that in order for a trial court’s Crim.R.
48 discretionary dismissal power to be properly exercised a hearing must be conducted
which enables the state to have an opportunity to make an objection on the record in
anticipation of potential subsequent appellate review.” Id. at ¶ 10, citing State v. Montiel,
185 Ohio App.3d 362,
2009-Ohio-6589,
924 N.E.2d 375, ¶ 22 (2d Dist.) (Grady. J.,
concurring).
{¶ 18} In its first assignment of error, the state argues that similar to Slauterbeck,
the trial court did not afford the state an opportunity to object on the record prior to the
dismissal when the trial court granted Sullivan-Eason’s motion only five days after it was
filed. Sullivan-Eason responds that the trial court was open about its plan to dismiss the
matter once Sullivan-Eason had paid the court costs, and the state did not object when the
trial court announced this plan at the plea hearing.
{¶ 19} Contrary to Sullivan-Eason’s position, the trial court’s stated plan was that
it would “entertain” a motion to terminate the diversion program, and that Sullivan-Eason
“can be terminated from the diversion program” once he paid the court costs. (Emphasis
added.) As such, the trial court’s statement to Sullivan-Eason contemplated a future
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decision on whether to terminate the diversion program and dismiss the indictment.
Crim.R. 48(B) requires an opportunity for the state to object prior to that decision, but the
trial court granted the motion only five days after it was filed, before the state had a
chance to respond. We hold, therefore, that the trial court abused its discretion in
dismissing the indictment without affording the state an opportunity to object.
Slauterbeck at ¶ 13; State v. Myrick, 3d Dist. Union No. 14-19-27, 2020-Ohio-974, ¶ 8
(trial court abused its discretion when it dismissed domestic violence charge pursuant to
Crim.R. 48(B) without providing the state an opportunity to object to the dismissal or
provide an argument in opposition to the dismissal).
{¶ 20} As an ancillary matter, the state recognizes a difference amongst the
appellate courts regarding whether the trial court is required to hold a hearing before
dismissing a case under Crim.R. 48(B). In Slauterbeck, this court stated that such a
hearing was required, quoting the concurring opinion in the Second District’s decision in
Montiel:
Crim.R. 48(B) authorizes the court to dismiss an indictment, but provides
that if the court does so over the state’s objection the court ‘shall state on
the record its findings of fact and reasons for the dismissal.’ That
requirement contemplates an evidentiary hearing from which findings of
fact may be made, and which is necessary for subsequent appellate review
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of any error assigned by the state regarding an objection by the state that
the court overruled.”
Montiel at ¶ 22 (Grady, J., concurring). See also State v. Sanders, 2013-Ohio-5220,
3
N.E.3d 749, ¶ 21 (7th Dist.). However, the Eighth District in State v. Carabello, 2017-
Ohio-4449,
93 N.E.3d 322, ¶ 11, held that “Crim.R. 48(B) does not require the trial court
to hold a hearing when it dismisses a case over the state’s objection—the rule only
requires the court to state its findings of fact and reasons for the dismissal on the record.
Thus, even if the trial court did not hold a hearing, … the court’s failure to do so does
not constitute reversible error.” The Third District in Myrick recognized this difference
amongst the courts, but declined to hold that a dismissal hearing was required in all cases.
Myrick at ¶ 8. Instead, the court in Myrick held that the trial court abused its discretion
when it dismissed a domestic violence charge on its own motion and without notice to the
parties because it did not provide the prosecution an opportunity to object or to provide
an argument in opposition to dismissal.
Id. Like Myrick, we need not revisit whether the
trial court was required to hold a hearing before it dismissed this case, because here the
trial court’s quick action on Sullivan-Eason’s motion did not afford the prosecution either
an opportunity to object or to provide an argument in opposition.
{¶ 21} In his appellate brief, Sullivan-Eason argues that the matter is moot
because jeopardy has attached and the state cannot re-indict him in any event. We note
that although Sullivan-Eason invokes mootness, his argument is that any further
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prosecution by the state at this point would be a violation of his constitutional right
against double jeopardy. Here, Sullivan-Eason contends that jeopardy attached because
his plea was accepted and a finding was made that entailed “a resolution of any factual
elements that went to the merits of the charges.” State v. Soto, 158 Ohio St.3d 44, 2019-
Ohio-4430,
139 N.E.3d 889, ¶ 15, quoting United States v. Dionisio,
503 F.3d 78, 89 (2d
Cir.2007). Additionally, Sullivan-Eason argues that the case was resolved with the trial
court’s imposition of sanctions in the form of the gun forfeiture and payment of court
costs. However, contrary to Sullivan-Eason’s assertion, the trial court expressly withheld
any finding of guilt pending Sullivan-Eason’s completion of the pre-trial diversion
program. Furthermore, the agreed-upon gun forfeiture and payment of court costs were
only two parts of the diversion program. Thus, we hold that this case has not been
resolved such that jeopardy has attached, and therefore the constitutional prohibition
against double jeopardy does not bar further proceedings in this case on remand.
{¶ 22} In sum, the trial court abused its discretion when it dismissed the
indictment against Sullivan-Eason without a recommendation from the prosecutor of
successful completion of the pre-trial diversion program and without affording the state
an opportunity to object or provide an argument in opposition to the dismissal.
Accordingly, the state’s first and second assignments of error are well-taken.
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IV. Conclusion
{¶ 23} For the foregoing reasons, we reverse the judgment of the Erie County
Court of Common Pleas, which dismissed with prejudice the indictment against Sullivan-
Eason. We remand this matter to the trial court for further proceedings consistent with
this decision. Sullivan-Eason is ordered to pay the costs of this appeal pursuant to
App.R. 24.
Judgment reversed,
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Myron C. Duhart, P.J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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