A former Rocky River police officer who collided with an Akron woman while driving the wrong way on state Route 8 in Cuyahoga Falls last February has requested an early prison release because of coronavirus concerns.
Summit County Common Pleas Judge Susan Baker Ross, however, denied Nicholas Diorio’s request Tuesday, saying he hasn’t yet served the six months required before being eligible to make the request.
"It is terrifying to be in prison right now," Ross said during a teleconference with attorneys. "Frankly, it’s scary to be on the streets now too."
Shianne McKinstry, the University of Akron student Diorio crashed into, and prosecutors, opposed Diorio’s request. McKinstry suffered a shattered heel, broken ankle, fractured tibia and fibula, and a split knee. She had one surgery and must undergo a second one.
"I ask that you deny his request because it does me an injustice that he gets to make choices on how he wants his life to go while I still have none," McKinstry, 25, wrote in a recent letter to Ross. "He chose to drink beyond his limit. He chose to drive drunk. He chose to put not only his life but someone else’s life in jeopardy. I never chose to be in this situation."
Police say Diorio was driving north on the southbound side of Route 8 about 2:45 a.m. Feb. 26, 2019, when he crashed head-on into McKinstry’s southbound vehicle near Portage Trail in Cuyahoga Falls. McKinstry was on her way home from work.
Police say Diorio's blood-alcohol level was 0.19%, more than twice the 0.08% legal limit for driving in Ohio.
Diorio, 37, pleaded guilty in January to vehicular assault and operating a vehicle while under the influence.
Ross sentenced Diorio in February to three years in prison and suspended his driver’s license for three years.
Diorio, a patrolman with Rocky River since 2011, resigned his post.
Henry Hilow, Diorio’s attorney, filed a request for Diorio’s release from the Toledo Correctional Institution in mid-April. He said Diorio could be at risk of contracting COVID-19 because of injuries he sustained in the crash, including lung damage.
"This is strictly in response to the pandemic," Hilow said. "I am not a doctor. I wanted to make the court and all parties aware of the situation."
The Toledo prison is among several state institutions that have had inmates and staff test positive for coronavirus. In Toledo, nearly 1,400 inmates are currently under quarantine. No inmates there have died so far from the virus, according to the prison website.
Assistant Prosecutor Jay Cole said during the teleconference that Diorio has only served a few months of his prison sentence for a case that involved serious injuries.
"I don’t see this as grounds for the court to allow him out in any way, shape or form," Cole said.
Ross agreed. She said she doesn’t have the authority to grant his request and – if it proceeded to a hearing – would deny it. She said Hilow could take his request to Gov. Mike DeWine.
Hilow said he will withdraw his request, though he reserved the right to refile it if he found out new information about the coronavirus situation in the Toledo prison. He said he doesn’t plan to make a request to DeWine.
Besides fighting to keep Diorio behind bars, McKinstry also is suing the Akron bar that she claims served Diorio even though he’d had too much to drink. The suit, which seeks compensatory and punitive damages and attorney’s fees, is pending in Summit County Common Pleas Court. The bar denies the allegations.
McKinstry, who was majoring in engineering and minoring in dance at UA, had to drop out of school after the crash. She said she is wearing a brace and must walk with a crutch. Her second surgery was delayed twice because of the pandemic.
"Basically, what I want is him – in a roundabout way – to walk in my shoes," McKinstry said of Diorio. "I just want his time to match my time."
Editor’s note: Reporter Jeff Saunders contributed to this story.
Stephanie Warsmith can be reached at firstname.lastname@example.org, 330-996-3705, and on Twitter: @swarsmithabj. Jeffrey Saunders can be reached at email@example.com and 330-541-9400.