[Cite as State v. Valle, 2013-Ohio-4280.]


STATE OF OHIO                      )                IN THE COURT OF APPEALS
                                   )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                       C.A. No.      12CA010314

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
ADA I. VALLE                                        COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellee                                    CASE No.   10CR082008

                                  DECISION AND JOURNAL ENTRY

Dated: September 30, 2013



        HENSAL, Judge.

        {¶1}     The State of Ohio appeals a judgment of the Lorain County common pleas court

that dismissed the criminal case that was pending against Ada Valle. For the following reasons,

this Court affirms.

                                               I.

        {¶2}     In December 2010, the Grand Jury indicted Ms. Valle for theft and passing bad

checks. Before trial, she moved to be accepted into “the Lorain County Court of Common Pleas

Diversion Program.” Over the State’s objection, the trial court accepted her guilty plea and

approved her entrance into the program. Following a year of supervision by the Lorain County

Adult Probation Department, the court found “that the defendant has successfully completed the

period of rehabilitation.” It, therefore, dismissed the case “pursuant to R.C. 2951.041(E).” The

State has appealed, assigning two errors.
                                                   2


                                                   II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT IMPROPERLY DISMISSED MS. VALLE’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
       COMMON PLEAS DIVERSION PROGRAM SO AS TO REMOVE ONE OF
       THE ESSENTIAL PARTIES TO THE CASE AND TO VIOLATE THE
       CONSTITUTIONAL CONCEPT OF SEPARATION OF POWERS.

       {¶3}    The State argues that the trial court improperly dismissed the charges against Ms.

Valle because it did not have authority to establish a diversion program. It also argues that the

court’s program violates the concept of separation of powers.

       {¶4}    According to the trial court’s journal entry, it dismissed Ms. Valle’s case

“pursuant to R.C. 2951.041(E).” Revised Code Section 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 [her].” State v. Wagner, 9th Dist. Lorain No.

12CA010199, 2013-Ohio-2036, ¶ 4. As in Wagner, the State, in its brief, “has not cited Section

2951.041, let alone demonstrated that the court improperly applied the statute.” Id. It also has

not challenged the constitutionality of Section 2951.041(E). Id. at ¶ 7. In addition, the record

does not contain any details about the trial court’s allegedly unlawful diversion program. Id. at ¶

7; State v. Hatfield, 9th Dist. Lorain No. 12CA010198, 2013-Ohio-3069, ¶ 6. Although the State

has attempted to append documents to its brief that, it contends, provide the details of the court’s

program, the documents do not comply with Local Rule (7)(B)(9)(a) and, therefore, must be

stricken from the appendix of the State’s brief.
                                                 3


       {¶5}     Upon review of the record, we conclude that the State has failed to establish that

the trial court improperly dismissed Ms. Valle’s case. Its assignments of error are overruled.

                                                III.

       {¶6}    The State has not contested the trial court’s application of Revised Code Section

2951.041(E) and has not properly included in the record any details regarding the court’s

allegedly unlawful pretrial diversion program. The judgment of the Lorain County common

pleas court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
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MOORE, P. J.
CONCURS.

CARR, J.
DISSENTING.

      {¶7} I respectfully dissent for the reasons I articulated in State v. Davis, 9th Dist.

Lorain No. 12CA010272, 2013-Ohio-3966, ¶ 10-15 (Carr, J., dissenting).


APPEARANCES:

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

MICHAEL DUFF, Attorney at Law, for Appellee.
