Pretrial Diversion—What Is It?
A pretrial diversion agreement is a contract between the State and the defendant in a criminal case. The general purpose of a pretrial diversion agreement is to provide a means by which certain juvenile and adult charges can be resolved with the defendant receiving an alternative to prosecution in exchange for acceptance of and compliance with certain conditions. A typical diversion agreement has conditions similar to those imposed by a court upon sentencing or a juvenile court’s disposition of a matter such as a probationary term, a fine, fees and other costs, counseling or rehabilitation, community service, no new arrests, no alcohol, non-use of controlled substances and regular reporting to a Community Corrections supervisor. However , the defendant must also plead guilty to the charges and agree to a presentence investigation. In the advisement of rights form that accompanies the written diversion agreement, the State informs the defendant that if he or she "fails in your obligation," the State will "be free to re-file all criminal charges without delay," and the defendant "may be sentenced according to law on all charges." Completion of a pretrial diversion agreement does not result in a conviction on the charge or charges included. Following completion of the conditions as proscribed by the diversion agreement and satisfactory completion of the terms of the presentence investigation, a dismissal motion may be granted.
Eligibility Criteria for Pretrial Diversion in Indiana
To be eligible for pretrial diversion in Indiana, an individual must face criminal charges for an eligible offense. At present, only individuals charged with a Class A or Class B misdemeanor are eligible for pretrial diversion. Indiana Code 35-28.5-1-4 lists the offenses that constitute a Class A or B misdemeanor; they include criminal trespass, public intoxication and prostitution. However, even after confirming eligibility based on the criminal charges you face, there are additional conditions that must be met in order to qualify for pretrial diversion in Indiana: Criminal charges for which pretrial diversion is likely to be considered also include operating a motor vehicle without ever receiving a valid license (IC 9-24-19-2) and possession of marijuana (IC 35-48-4-11). If you are charged with any of these offenses, you may qualify for pretrial diversion. Once pretrial diversion is granted and you fulfill the terms of the agreement, the charges will be dismissed or, if a civil offense such as public intoxication, the offense will be resolved by paying a fine. However, this process is not guaranteed: In certain cases, the prosecutor can ask the court to revoke the pretrial diversion agreement if you are charged with another offense while on pretrial diversion.
The Process of Indiana Pretrial Diversion
Pretrial diversion is very common in Indiana. The goal of diversion is to keep people out of jail and to attempt to help them avoid becoming criminals in the first place. This usually involves a probation program of some sort, but not always. Once charges are filed, the prosecutor will usually wait a period of time before offering pretrial diversion. The prosecutor may not offer diversion until an initial hearing has occurred (such as the initial hearing on a felony where the judge allows the defendant to be out on the street), but diversion can be offered earlier or later. A defendant can ask for pretrial diversion before charges are filed. This is a strategy that requires the individual to consult an attorney prior to the initial hearing (or the filing of the charges). Sometimes, if the prosecutor is willing, an individual can work out the terms of diversion before charges are filed. This is rare but it has happened and can work out very well for an individual. An attorney would need to accompany the defendant (for negotiations) or be available during the initial hearing to finalize the deal at that time. For most defendants, pretrial diversion does not happen until a few hearings have occurred. Pretrial diversion may occur at an initial hearing, another hearing after the initial hearing, or at the status hearing. Sometimes the defendant will just advise the court that he wants diversion, and the court may agree or disagree (though the prosecutor must agree). If the court agrees to diversion, the defendant will sign an agreement. The agreement will set forth the terms and conditions of diversion. As with any contract, do not sign it unless you are willing to comply with the terms and conditions. Each diversion agreement has its own terms and conditions. In other words, just because someone else gets a particular condition does not mean it applies to you. Or vice versa. The prosecutor may negotiate changes to the agreement (based upon particular circumstances), and often does. Therefore, just because someone else received XYZ on a diversion agreement does not mean you will, or that you should. A defendant will need to agree to comply with the terms and conditions of the diversion agreement before he or she signs the agreement. If the defendant does not comply, he or she will not get bonuses such as avoiding a conviction. Further, if the defendant fails to complete diversion, the prosecutor can immediately file the charges and request jail time, a larger fine, or agree to a longer incarceration if the defendant is convicted at trial. There is nothing worse than ruining a good deal because the defendant messes up. Assuming the defendant is serious about completing the terms of the diversion agreement, the defendant will be required to attend meetings, find a job, apply for a particular program, pay fines and costs, and other general terms. The specific terms depend on the defendant’s circumstances and the prosecutor’s requirements. For example, some prosecutors agree to a certain diversion agreement with first offenders but not those with prior convictions. After the defendant completes the diversion agreement, and any basics such as having a job, following the law for a period of time, making restitution, being truthful with the court, helping others, paying fines and costs, and the like, the defendant will have to ask for proof of completion of the terms of diversion. The judge has the ability to dismiss the charges and seal the record of the arrest. Some prosecutors do not recommend sealing the arrest record under any circumstances. The Rooker-Feldman doctrine prevents one court from determining the outcome of another court case. Accordingly, most judges consider the matter and proceed with dismissing the charges pursuant to an entry of judgment form.
Advantages of Pretrial Diversion Agreements
For defendants, the benefits of entering into a pretrial diversion program are significant. As long as they successfully complete the program, they will not have a criminal record. If they successfully complete the terms of the program within the specified time period, the charges against them will be dismissed, and they will not be prosecuted. The simple fact that a defendant may avoid a criminal record is a huge incentive for many people to enter into pretrial diversion programs in Indiana. The consequences of having a criminal conviction on your record can be severe, especially when it comes to your employment and could affect your ability to live in the residence of your choice. Further, if your charges are dismissed after completing the program, there is no need to be concerned about any related collateral consequences that may occur once the population at large learns about your conviction, whether or not that information is accurate or even necessarily a conviction at all. Some other benefits that may be associated with entry into a pretrial diversion program include: Of course, not all pretrial diversion programs are the same. For example, the Allen County pretrial diversion program is highly structured and requires a great deal of engagement from the participant, including regularly scheduled meetings with a diversion officer, potentially periodic drug testing, and a requirement that the defendant report any employment changes. Some pretrial diversion programs involve less intensive requirements, such as requesting a diversion hearing and receiving court approval, and then engagement in a diversion program managed by an organization or agency outside of the court system.
Typical Terms and Conditions for Pretrial Diversions
The terms of a pretrial diversion agreement are key prerequisites for acceptance into the program. Generally, the conditions reflect a combination of what the prosecutor and the defendant believe are necessary for the offender to avoid further criminal activity.
The Indiana Judicial Center specifies that pretrial diversion agreements often include conditions such as:
Restitution, community service, and other conditions vary based on the nature of the offense and what rehabilitation efforts the defendant is willing to undertake. For example, if the defendant has a substance abuse problem, they may be asked to undergo rehabilitation treatment , and to follow up with counseling after the program ends. If the offense was a felony involving a weapon, the defendant may be required to relinquish his or her gun permit and go through a gun safety competency course.
The defendant may also be required to attend a certain number of sponsorships, workshops, or community information sessions, such as an AA meeting, during their enrollment period. Some programs require the defendant to undergo psychosexual testing at a designated facility for a period of time.
In some cases, Indiana courts may ask the defendant to avoid contact with certain people to reduce the chances of recidivism. Or, the court may require the defendant to relocate entirely and seek employment in the new surrounding area.
Challenges with Pretrial Diversions
While pretrial diversion can offer many benefits, it’s important for defendants to understand that there are challenges that may arise. One of the more common issues is failure to adhere to the community service requirement due to scheduling conflicts, lack of transport or other similar concerns. Once again, the individual should communicate these obstacles to their attorney as soon as possible and work with them to find a solution. In some cases, the program may allow for an alternative form of community service as a substitute.
Another potential challenge facing defendants who are part of a pretrial diversion program involves minor technical violations that could result in a violation of the agreement itself. For example, perhaps a defendant misses a meeting with their community service supervisor or reports late to their employment training program. Oftentimes, these are relatively common issues but they could result in prosecution if the pretrial diversion agreement is not properly managed.
Finally, it’s important to remember that pretrial diversion agreements are known as "voluntary agreements" under Indiana Code 35-33-8-3. If the trial court believes that the defendant has failed to uphold the agreement’s terms, the court will issue a petition to revoke. A hearing will then be scheduled, after which the court will decide whether or not to proceed with the prosecution. Keeping in mind the potential consequences of these sanctions are an important consideration for defendants.
Final Notes About Pretrial Diversion in Indiana
In conclusion, pretrial diversion can be a great option for eligible defendants. The agreement can provide the defendant with many favorable aspects that can really help them avoid a formal criminal conviction that would adversely affect their lives and their family’s lives.
After you have been formally charged with a crime, you will be asked if you would like to participate in pretrial diversion or enter into a pretrial diversion agreement. The prosecution will give you essentially the same offer as the one they made to your attorney in the pre-filing stage; however, it is important to also keep in mind that you can reject the offer at this time, that you have a right to a jury trial, and that you can hire an experienced Indiana pretrial diversion attorney to represent you in negotiating terms of the pretrial diversion agreement with the prosecutor .
The burden is on you—if you have been formally charged with a crime and are being offered a pretrial diversion agreement, you need to carefully weigh whether to enter into the agreement. It is very important to know that if you do not successfully complete the terms of the agreement, then the prosecution will dismiss the charges against you, the court will find you guilty of the charged offense, and you will have the formal conviction on your criminal record.
