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State v. Ocasio

Court of Appeals of Ohio, Ninth District

September 30, 2013

STATE OF OHIO Appellant
v.
JENNIFER OCASIO Appellee

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 11CR083421

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellant.

PAUL R. ST. MARIE, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

HENSAL, Judge.

(¶1} The State of Ohio appeals an order of the Lorain County common pleas court that dismissed the criminal charge that was pending against Jennifer Ocasio. For the following reasons, this Court affirms.

I.

(¶2} On August 25, 2011, the Grand Jury indicted Ms. Ocasio for theft in office under Section 2921.41(A)(2) of the Ohio Revised Code. In September 2011, Ms. Ocasio moved for acceptance into the Lorain County Court of Common Pleas Diversion Program. The trial court ordered a preliminary investigation and, subsequently, granted her motion over the State's objection. On November 29, 2012, the trial court found that Ms. Ocasio had "successfully completed the period of rehabilitation" and, therefore, dismissed the case "pursuant to R.C. 2951.041(E)." The State has appealed, assigning two errors, which we will address together.

II.

ASSIGNMENT OF ERROR I
THE TRIAL COURT IMPROPERLY DISMISSED MS. OCASIO'S INDICTMENT UPON COMPLETION OF THE LORAIN COUNTY COURT OF COMMON PLEAS DIVERSION PROGRAM AS ONLY A PROSECUTING ATTORNEY HAS THE AUTHORITY TO ESTABLISH A PRE-TRIAL DIVERSION PROGRAM.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN STRUCTURING THE LORAIN COUNTY COURT OF COMMON PLEAS DIVERSION PROGRAM TO REMOVE ONE OF THE ESSENTIAL PARTIES TO THE CASE AND TO VIOLATE THE CONSTITUTIONAL CONCEPT OF SEPARATION OF POWERS.

(¶3} In its first assignment of error, the State argues that the trial court incorrectly dismissed Ms. Ocasio's case after placing her into the court's pretrial diversion program. It argues that the court did not have authority to create a diversion program and that, under Revised Code Section 2935.36, only prosecuting attorneys have authority to create such programs. In its second assignment of error, the State argues that the trial court's diversion program is unconstitutional because it violates the separation of powers doctrine.

(¶4} This case presents the same issues as State v. Wagner, 9th Dist. Lorain No. 12CA010199, 2013-Ohio-2036, which this Court recently decided. In that case, the trial court granted James Wagner's motion for acceptance into the Lorain County common pleas court's diversion program over the State's objection. After Mr. Wagner successfully completed the program, the court dismissed the charges pending against him "[p]ursuant to R.C. 2951.041[.]" Id. at ¶ 3. On appeal, the State, as in this case, argued that the trial court did not have authority to create a diversion program and that the program violated the separation of powers doctrine. This Court, however, noted that the trial court had dismissed the charges against Mr. Wagner under Revised Code Section 2951.041. Id. at ΒΆ 4. We noted that the State had not argued that the trial court improperly applied Section ...


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