603 N.E.2d 1086 | Ohio Ct. App. | 1991
This is a consolidated appeal taken from judgments of conviction and sentence entered by the Common Pleas Court of Ross County, Ohio, sentencing Brenda Newberry and Linda Mick, defendants below and appellants herein, to suspended prison terms and five years of probation for theft in violation of R.C.
"Admission to a prosecutor's diversion program authorized by R.C.
A short summary of the facts pertinent to this appeal is as follows. On December 16, 1988, appellant, Brenda Newberry, was indicted for theft on the grounds that, between January 1, 1987 and July 31, 1988, she received "food stamps" valued at $892 without disclosing that she had been receiving income *820 as a result of her periodic employment as a telephone solicitor. Similarly, on October 27, 1989, appellant, Linda Mick, was indicted for theft on the grounds that, between May 1, 1988 and July 31, 1989, she received "ADC benefits and food stamps" valued at $4,275 without making full disclosure of her husband's employment income.
Both appellants applied to participate in the Ross-Pike County Prosecutor's Diversion Program and both were denied admittance. Appellants then requested hearings on the rejection of their respective applications, but these were denied as well. Thereafter, appellants both entered no contest pleas and were, subsequently, found guilty and sentenced on those charges specified in their indictments. These appeals followed and on August 2, 1990, we ordered these cases to be consolidated so as to consider whether an individual has a due process right to a hearing upon the denial of their admittance into a diversionary program.
Initially, we note that a county prosecutor is authorized to implement a pretrial diversion program for certain offenders under R.C.
Section 1,
However, the actual determination of whether any procedural protections are due is dependent upon the extent to which the individual will be condemned to suffer grievous loss. Morrisseyv. Brewer (1972),
At the time their applications for diversion were rejected, appellants enjoyed no interest in remaining free from prosecution for their offenses. Rather, appellants were only entitled to be considered for participation in the program. The record reveals that they were considered and then rejected for differing reasons. That being said, we are not persuaded that appellants' mere expectations of participating in the program rose to such a level that procedural due process safeguards must be afforded.2 Appellants cite no *822 authority which specifically supports their argument on this issue and we are aware of none. To the contrary, our research reveals several commentators who join our conclusion that a due process hearing is not required upon the rejection of an application to such a program. See, e.g., 2 LaFave Israel, Criminal Procedure (1985) 221, Section 13.6; Note, Criminal Practice — Pretrial Intervention Programs — An Innovative Reform of the Criminal Justice System (1975), 28 Rutgers L.Rev. 1203, 1214-1216.
Our holding in this case is not inconsistent with the numerous Supreme Court cases relied upon in appellants' brief. Those cases arose under circumstances where an existing entitlement was to be discontinued. See, e.g., Morrissey,supra,
On the basis of the foregoing, appellants' assignment of error is overruled and the judgments are affirmed.
Judgments affirmed.
PETER B. ABELE, J., concurs.
HARSHA, J., not participating.
"We have never held that applicants for benefits, as distinct from those already receiving them, have a legitimate claim of entitlement protected by the Due Process Clause of the * * *
This court is bound by decisions of the United States Supreme Court on issues concerning federal constitutional rights.State v. Lewis (1990),