Lafayette, Indiana, October 2022 – A recent case brought before the Indiana Court of Appeals examined whether the State has the legal authority to revoke a diversion agreement after the defendant has abided by the terms. Bennett Boehning and Clary Attorney Aaron Spolarich presented an oral argument in Jeremiah Smith v. State of Indiana at the Indiana Court of Appeals that the diversion agreement made between Smith and the State was emblematic of a contract and could not be rescinded.
A diversion agreement is specific to criminal law and acts as an alternative procedure, or deal, made between the defendant and the prosecutor. Often a diversion agreement results in having the charges dropped and the defendant is required to complete some form of rehabilitation program. In Smith v. State of Indiana, the State offered a diversion agreement; the defendant accepted it; and the State filed the agreement with the court. But one week later, the State had second thoughts about its diversion offer and petitioned the trial court to rescind the decision.
In the case of Smith v. State of Indiana, the question raised is whether or not the state can withdraw a diversion agreement after it has been filed. According to Smith’s agreement, “The State reserves the right to revoke this agreement for any reason prior to its execution and for any violation of its terms thereafter.” Since the State did not revoke the diversion prior to its agreement, and since Smith complied with the terms of the agreement, Spolarich argued that the State was in breach of contract. This case brings into question the State’s power to back out of a contract that the other party had not violated and raises questions about prosecutorial misconduct and inequitable procedures surrounding due process.
On October 25, 2022, the Court of Appeals of Indiana issued its opinion, reversing the trial court’s order. The Court agreed with Spolarich that a diversion agreement is a contract between the State and criminal defendants and that a prosecutor could not unilaterally revoke their offer after the trial court accepted the agreement. As the court stated, “The promise of a state official in his public capacity is a pledge of the public faith and is not to be lightly disregarded. The public justifiably expects the State, above all others to keep its bond.” The State will now have 45 days to decide whether to request the Indiana Supreme Court accept the case for review.
The Court of Appeals’ opinion can be found at: