[Cite as State v. Wagner , 2013-Ohio-2036.]

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

STATE OF OHIO Appellant

v. JAMES C. WAGNER Appellee C.A. No. 12CA010199

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 09CR079330

DECISION AND JOURNAL ENTRY Dated: May 20, 2013

HENSAL, Judge. {¶1} The State of Ohio appeals an order of the Lorain County Court of Common Pleas that dismissed the criminal charges that were pending against James Wagner. For the following reasons, this Court affirms.

I. {¶2} On October 29, 2009, the Lorain County Grand Jury indicted Mr. Wagner for forgery and insurance fraud, both felonies of the fi fth degree. According to the record, at a pretrial hearing on December 13, 2010, Mr. Wagner and the court discussed th e court’s “diversion program.” Following the hearing, the court entered an order acknowledging that Mr. Wagner intended to move for acceptance into the program. It also referred him to the Lorain County Adult Probation Depa rtment for a preliminary investigati on and report. On January 5, 2011, the court found that, upon review of th e preliminary report, Mr. Wagner’s application could proceed. It ordered him back to the probation de partment for additi onal investigation.2

{¶3} On March 2, 2011, the State filed a brief opposing Mr. Wagner’s motion for entry into the diversion program. On March 14, 2011, th e trial court held a hearing on the motion. At the hearing, Mr. Wagner argued that he was statutorily eligible for the program and that the probation department ha d found him worthy of diversion. The court granted Mr. Wagner’s motion over the State’s objection. In accordance with the terms of the program, Mr. Wagner pleaded guilty to forgery and insurance fraud. After the court examined him, it accepted his plea and placed him into the diversion program. Specifically, it placed him under the supervision and control of the probation department for at least one year. It also ordered him to pay restitution. On May 13, 2012, the Court found that, “[u]pon r ecommendation of the [pr obation department],” Mr. Wagner had successfully completed the di version program. “[P]ursuant to R.C. 2951.041(E),” it terminated the proba tion department’s supervision and dismissed the case. The State has appealed, assigning two errors.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT IMPROPERLY DISMISSED WAGNER’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} The State argues that, under Revise d Code Section 2935.36, only a prosecuting attorney has authority to establish a pretrial di version program. The trial court, however, did not purport to act under Section 2935.36. Rather, it cite d Section 2951.041(E) as the authority for its actions. Section 2951.041 lays out a process under which a defendant may seek intervention in lieu of conviction that, upon succe ssful completion, culminates in the dismissal of the charges3

against him. R.C. 2951.041(A-E). In its brief, the State has not cite d Section 2951.041, let alone demonstrated that the court impr operly applied the statute. {¶5} Upon review of the record, we conclude th at the State has not established that the trial court improperly dismi ssed the charges against Mr. Wagner under Section 2951.041. The State’s first assignment of error is overruled.

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. {¶6} The State argues that the court’s “diversion program” is invalid because it was not involved in the creation of the program. Accordin g to the State, it is a necessary party in any criminal prosecution and it has the exclusive authorit y to decide whether to proceed. It argues that the court’s diversion program removes the prosecuting attorney from its legally-assigned

duties under Revised Code Section 309.08(A). {¶7} As noted earlier, the trial court asserted that it was acting pursuant to Section 2951.041. The State did not challenge the constitu tionality of Section 2951.041 in the trial court and has not specifically argued that Section 2951. 041 is unconstitutional in its appellate brief. It, therefore, has forfeited any argument rega rding the constitutionality of that section. State v.

Awan , 22 Ohio St.3d 120 (1986), syllabus; State v. Dent , 9th Dist. No. 23855, 2008-Ohio-660, ¶ 7 (declining to address the constitutionality of a statute when appellant failed to “directly challenge” its constitutionality in the trial court). This Court will not consider the constitutionality of a statute sua sponte. Smith v. Landfair , 135 Ohio St.3d 89, 2012-Ohio-5692, ¶ 12 (“Declaring a statute unconstitutional, sua s ponte, without notice to the parties would be unprecedented.”). Furthermore, the State has not included in the record any details about the4

court’s allegedly unlawful divers ion program. The State’s second assignment of error is

overruled.

III. {¶8} The State has not established that the court improperly app lied Revised Code

Section 2951.041 or that Section 2951.041 is unconstitu tional. The judgment of the Lorain County Court of Common Pleas 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 th is 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 docum ent 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 COURT5

BELFANCE, P. J. CONCURS. WHITMORE, J. CONCURRING IN JUDGMENT ONLY. {¶9} The record contains no evidence that Wag ner alleged that “drug usage, alcohol usage, mental illness, or intellectual disability * * * was a factor leading to the [charged] offense[s].” R.C. 2951.041(B)(6). Moreover, the State makes no argument that R.C. 2951.041, intervention in lieu of conviction, was used in th is case, and Wagner did not file an appellate brief. Therefore, I would not engage in the analysis of whether the court’s action was proper

under R.C. 2951.041. I would affirm the court’s deci sion because the State has failed to include in the record any details regarding the court’s allegedly unlawful diversion program. The State challenges the constitutionality of a diversion program without providing to this Court any documentation regarding such program. As such, it is impossible to review the validity of the

program.

APPEARANCES: DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellant. DANIEL WIGHTMAN, Attorney at Law, for Appellee.