APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09CR079564
DENNIS P. WILL, Prosecuting Attorney, and NATASH RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellant.
MARK B. MAREIN, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
BELFANCE, Presiding Judge.
(¶ 1} The State appeals the order of the Lorain County Court of Common Pleas that dismissed the criminal charges that were pending against Nicole Ruoff For the reasons set forth below, we affirm.
(¶ 2} On December 3, 2009, Ms. Ruoff was indicted for tampering with evidence, falsification, and two counts of patient abuse and neglect. On November 8, 2011, Ms. Ruoff moved the court to permit her to participate in its "diversion program[.]" According to the trial court's journal entry, Ms. Ruoff subsequently pleaded guilty to "the indictment[.]" The trial court accepted her plea and entered the following into its January 31, 2012 journal entry: "Court does not find Defendant guilty because court grants Defendant's request for placement in the Court's diversion program. Case stayed. Bond modified to $5, 000.00 personal." On January 18, 2013, the trial court entered the following order: "Upon recommendation of the Lorain County Adult Probation Department and pursuant to R.C. 2951.041(E), the Court finds that the defendant has successfully completed the period of rehabilitation. Supervision is hereby terminated successfully and the above captioned case is hereby dismissed."
(¶3} The State has appealed, raising two assignments of error for our review.
ASSIGNMENT OF ERROR I
THE TRIAL COURT IMPROPERLY DISMISSED MS. RUOFF'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.
(¶4} In the State's first assignment of error, it argues, pointing to R.C. 2935.36, that only a prosecuting attorney may establish a pretrial diversion program. This is the same issue the State raised in State v. Wagner, 9th Dist. Lorain No. 12CA010199, 2013-Ohio-2036, ¶ 4. As in Wagner, the trial court in this case dismissed the action pursuant to R.C. 2951.041(E), not R.C. 2935.36. Id. Also similar to Wagner is the State's failure to even mention R.C. 2951.041 in its brief, "let alone demonstrate that the court improperly applied the statute." Id
(¶5} "[R.C.] 2951.041 lays out a process under which a defendant may seek intervention in lieu of conviction that, upon successful completion, culminates in the dismissal of the charges against him. R.C. 2951.041(A-E)." Id.Because the State has not challenged the trial court's application of R.C. 2951.041(E), we ...