State v. Polen , 2009 Ohio 3313 ( 2009 )

[Cite as State v. Polen, 2009-Ohio-3313.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-08-14
v.
DEANNA JEAN POLEN, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. 20082092 CRI
Judgment Affirmed
Date of Decision: July 6, 2009
APPEARANCES:
Harry R. Reinhart for Appellant
James Manken for Appellee
Case No. 6-08-14
PRESTON, P.J.
{¶1} Defendant-appellant, Deanna Jean Polen (hereinafter “Polen”),
appeals the Hardin County Court of Common Pleas’ judgment entry of sentence.
For the reasons that follow, we affirm.
{¶2} On May 23, 2008, the Hardin County Grand Jury indicted Polen on
nine counts, including: count one of theft in public office in violation of R.C.
2921.41(A)(1), (A)(2), a third degree felony; counts two through eight of
tampering with records, violations of R.C. 2913.42(A)(1) and third degree
felonies; and count nine of forgery in violation of R.C. 2913.31(A)(3), a fifth
degree felony. (Doc. No. 1). The indictment stemmed from criminal conduct that
occurred from on or about July 2, 2004 to October 10, 2006 while Polen was a
Hardin County Treasurer’s Office employee. (Id.).
{¶3} On June 3, 2008, Polen entered a plea of not guilty to each count in
the indictment and was released on bond. (Doc. No. 7). On August 25-29, 2008, a
jury trial was held, and, on August 29, 2009, the jury found Polen guilty on all
nine counts of the indictment. (Doc. Nos. 15-24) Thereafter, the trial court
ordered that a pre-sentence investigation (PSI) report be conducted and the matter
be set for sentencing. (Doc. No. 24).
{¶4} On September 16, 2008, the State filed a motion for an order of
restitution pursuant to R.C. 2921.41(C)(2)(b)(i) to require the defendant’s
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retirement system and deferred compensation program to withhold an amount
equivalent to the restitution ordered by the court for the actual loss of the victim.
(Doc. No. 28). On September 18, 2008, Polen filed a motion to merge all counts
in the indictment for purposes of sentencing. (Doc. No. 30).
{¶5} On September 23, 2008, the trial court held a hearing on defendant’s
motion to merge all counts for purposes of sentencing and a sentencing hearing.
(Doc. No. 37). The trial court sentenced Polen to: two (2) years imprisonment on
count one, theft in office; one (1) year imprisonment on count seven, tampering
with records; and one (1) year imprisonment on count eight, tampering with
records. (Id.). On defendant’s motion and agreement between the parties, the trial
court ordered that counts two, three, four, five, six, and nine be merged with count
one for sentencing. (Id.). The court ordered that the term of imprisonment for
counts one, seven, and eight run consecutive to each other, for a cumulative total
of four (4) years imprisonment. (Id.). With respect to counts one, seven, and eight,
the trial court ordered that defendant pay court costs, a $50.00 fine, and
$98,238.49 in restitution to the Hardin County General Fund pursuant to Court’s
Exhibit A attached to the judgment entry. (Id.).
{¶6} On November 5, 2008, Polen filed a notice of appeal from the trial
court’s judgment entry of sentence. (Doc. No. 44). Polen now appeals raising two
assignments of error for our review.
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ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED TO THE SUBSTANTIAL
PREJUDICE OF DEFENDANT-APPELLANT WHEN IT
FAILED TO ISSUE A FORFEITURE ORDER AS REQUIRED
BY O.R.C. § 2929.192(A).
{¶7} In her first assignment of error, Polen argues that the trial court’s
sentence is void because the trial court failed to issue a forfeiture order as required
by R.C. 2929.192(A). Since the trial court failed to comply with R.C.
2929.192(A), argues Polen, the judgment entry of sentence is void. The State,
however, argues that R.C. 2929.192(A) is inapplicable for two reasons: (1) Polen’s
criminal conduct occurred prior to R.C. 2929.192’s effective date; and (2) Polen
did not commit the offenses while holding a position of honor, trust, or profit, as
those terms are defined under the statute. The State asserts that R.C.
2921.41(C)(2)(b)(i) is applicable, which provides that a motion for a forfeiture
order may be filed “at any time subsequent to the conviction of the offender.” As
such, the State argues that the trial court did not err by failing to incorporate the
forfeiture order in its judgment entry of sentence. The State also argues that
Polen’s assignment of error is not ripe for review since the trial court has not yet
ordered forfeiture.
{¶8} As an initial matter, we disagree with the State’s assertion that
Polen’s assignment of error is not ripe for review. The purpose of the ripeness
doctrine “is to prevent the courts, through avoidance of premature adjudication,
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from entangling themselves in abstract disagreements * * *.” Roll v. Edwards, 156
Ohio App.3d 227, 2004-Ohio-767, 805 N.E.2d 162, ¶27, citing Abbott
Laboratories v. Gardner (1967), 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d
681. A claim is generally not ripe for review when it rests upon a future event that
may or may not occur. Kirk v. Kirk, 172 Ohio App.3d 404, 2007-Ohio-3140, 875
N.E.2d 125, ¶5, citing Texas v. United States (1998), 523 U.S. 296, 118 S.Ct.
1257, 140 L.Ed.2d 406. Polen, however, is arguing that she suffered prejudice
because the judgment entry of sentence is void as a result of the trial court’s
failure to incorporate the forfeiture order into its judgment entry as mandated by
statute. Thus, contrary to the State’s assertion, Polen is not predicating her
argument on some future uncertain event; but rather, an error in the trial court’s
judgment entry of sentence, which had already been journalized prior to Polen’s
notice of appeal. (Doc. Nos. 37, 44). Neither can we conclude that Polen’s
assignment of error presents an abstract disagreement that would preclude our
review. Edwards, 2004-Ohio-767, at ¶27. Therefore, we find Polen’s assignment
of error ripe for review.
{¶9} Statutory interpretation is a question of law reviewed de novo on
appeal. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167,
¶8. De novo review is independent and without deference to the trial court’s
judgment. In re J.L., 176 Ohio App.3d 186, 2008-Ohio-1488, 891 N.E.2d 778,
¶33. “An unambiguous statute must be applied in a manner consistent with the
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plain meaning of the statutory language.” State v. Lowe, 112 Ohio St.3d 507,
2007-Ohio-606, 861 N.E.2d 512, ¶9.
{¶10} R.C. 2929.192 provides, in pertinent part:
(A) If an offender is being sentenced for any felony offense listed
in division (D) of this section that was committed on or after the
effective date of this section, if the offender committed the offense
while serving in a position of honor, trust, or profit, and if the
offender, at the time of the commission of the offense, was a
member of any public retirement system or a participant in an
alternative retirement plan, in addition to any other sanction it
imposes under section 2929.14, 2929.15, 2929.16, 2929.17, or
2929.18 of the Revised Code but subject to division (B) of this
section, the court shall order the forfeiture to the public
retirement system or alternative retirement plan in which the
offender was a member or participant of the offender’s right to a
retirement allowance, pension, disability benefit, or other right
or benefit, other than payment of the offender’s accumulated
contributions, earned by reason of the offender’s being a
member of the public retirement system or alternative
retirement plan. A forfeiture ordered under this division is part of,
and shall be included in, the sentence of the offender. The court
shall send a copy of the journal entry imposing sentence on the
offender to the appropriate public retirement system or
alternative retirement plan in which the offender was a member
or participant.
***
(D) Division (A) of this section applies regarding an offender
who is convicted of or pleads guilty to any of the following
offenses committed on or after the effective date of this section that
is a felony and who committed the offense while serving in a
position of honor, trust, or profit:
(1) A violation of section * * * 2921.41 of the Revised Code that
is a felony of the third degree;
***
(F) As used in this section:
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(1) “Position of honor, trust, or profit” means any of the
following:
(a) An elective office of the state or any political subdivision of
the state;
(b) A position on any board or commission of the state that is
appointed by the governor or the attorney general;
(c) A position as a public official or employee, as defined in
section 102.01 of the Revised Code, who is required to file a
disclosure statement under section 102.02 of the Revised Code;
(d) A position as a prosecutor, as defined in section 2935.01 of
the Revised Code;
(e) A position as a peace officer, as defined in section 2935.01 of
the Revised Code, or as the superintendent or a trooper of the
state highway patrol.
(Emphasis added). According to the plain language of the statute, R.C.
2929.192(A) is applicable when: (1) the “offender is being sentenced for any
felony offense listed in division (D)”; (2) the felony offense was “committed on or
after the effective date of this section”; (3) “the offender committed the offense
while serving in a position of honor, trust, or profit”; and (4) “at the time of the
commission of the offense, [the offender] was a member of any public retirement
system or a participant in an alternative retirement plan.”
{¶11} Although Polen was sentenced for a felony offense listed in R.C.
2929.192(D), namely theft in office in violation of R.C. 2921.41, the indictment
alleged that Polen committed this offense on or about July 2, 2004 to October 10,
2006. (Doc. No. 1). R.C. 2929.192(A), however, was effective on May 13, 2008;
and thus, Polen did not commit the offense on or after the effective date of the
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statute. Furthermore, the indictment alleged that Polen was serving as an
employee of the Hardin County Treasurer’s Office at the time of her offenses.
(Doc. No. 1). Being employed as an “employee” of a county treasurer’s office is
not a position of honor, trust, or profit as those terms are defined in R.C.
2929.192(F)(1). Therefore, R.C. 2929.192(A) does not apply to Polen, and, as
such, the trial court did not err by failing to order forfeiture as part of its judgment
entry of sentence.
{¶12} On the other hand, R.C. 2921.41, which codifies the criminal offense
of theft in office and under which Polen was convicted, provides the procedures
for restitution orders against offending public officials. It states, in pertinent part:
In any case in which a sentencing court is required to order
restitution under division (C)(2)(a) of this section and in which
the offender, at the time of the commission of the offense or at
any other time, was a member of the public employees
retirement system, [or other specified retirement funds or
systems] * * * the entity to which restitution is to be made may
file a motion with the sentencing court specifying any retirement
system [or other specified retirement funds or systems] * * * to
withhold the amount required as restitution from any payment
that is to be made under a pension [or other funds] * * * to be
paid to the offender upon the offender’s withdrawal of the
offender’s contributions * * *. A motion described in this division
may be filed at any time subsequent to the conviction of the
offender or entry of a guilty plea. * * *
R.C. 2921.41(C)(2)(b)(i).
{¶13} Interestingly, the State appears to argue that the term “conviction” in
R.C. 2921.41(C)(2)(b)(i) means “judgment of conviction” in accordance with
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Crim.R. 32(C). As such, the State argues that “the filing under [this section]
cannot take place until after the conviction is journalized as required by Crim.R.
32(C).” (State’s Brief at 5). Crim.R. 32(C) requires that the trial court’s entry set
forth: “(1) the guilty plea, the jury verdict, or the finding of the court upon which
the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)
entry on the journal by the clerk of court.” State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163, ¶18. The record herein demonstrates that a jury
found Polen guilty on August 29, 2008, and that the State filed a forfeiture motion
on behalf of the Hardin County Treasurer’s Office on September 18, 2008. (Doc.
Nos. 24, 28). However, the trial court’s August 29, 2008 journal entry did not
meet Crim.R. 32(C)’s “sentence” requirement, because a sentencing hearing had
not yet been held. (Doc. No. 24). On September 23, 2008, the trial court
conducted a sentencing hearing. (Doc. No. 37). Then, on October 9, 2008, the
trial court filed its judgment entry of sentence wherein it found that Polen was
convicted by a jury on August 29, 2008 of counts one through nine of the
indictment and sentenced Polen to a cumulative four (4) years imprisonment. (Id.).
The trial court judge signed this entry, and the entry was journalized on October 9,
2008. (Id.). The October 9th entry satisfied Crim.R. 32(C)’s requirements. If the
State’s interpretation of the statute is correct—that “conviction” means “judgment
of conviction” in accordance with Crim.R. 32(C)—then the earliest it could have
filed its forfeiture motion was after October 9th. Therefore, according to its own
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argument, the State’s September 18th forfeiture motion was premature under R.C.
2921.41(C)(2)(b)(i) as it was filed before the conviction was journalized in
conformity with Crim.R. 32(C). We, however, disagree with the State’s
interpretation of “conviction” in R.C. 2921.41(C)(2)(b)(i).
{¶14} To begin with, the State’s argument is contrary to the plain language
of the statute. R.C. 2921.41(C)(2)(b)(i) uses the term “conviction,” not “judgment
of conviction.” A “conviction” is the “act or process of judicially finding someone
guilty of a crime; the state of having been proved guilty.” State v. Tuomala, 104
Ohio St.3d 93, 2004-Ohio-6239, 818 N.E.2d 272, ¶14, quoting BLACK’S LAW
DICTIONARY (7th Ed. 1999) 335. Additionally, the Ohio Supreme Court has
previously found that the term “conviction” in R.C. 2921.41 does not require that
the offender be sentenced, even though the term “conviction” normally includes
both the finding of guilt and the sentence. State ex rel. Watkins v. Fiorenzo (1994),
71 Ohio St.3d 259, 260, 643 N.E.2d 521, citing State v. Henderson (1979), 58
Ohio St.2d 171, 389 N.E.2d 494.
{¶15} The pertinent facts of Watkins v. Fiorenzo are these: Fiorenzo was
elected as the Trumbull County Engineer for a term of office from January 4, 1993
to January 4, 1997. 71 Ohio St.3d 259. On November 8, 1994, a court found
Fiorenzo guilty of, among other offenses, one count of theft in office in violation
of R.C. 2921.41(A)(1). Id. The court made a finding of guilt on November 10,
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1994, but the court ordered a pre-sentence investigation and set sentencing for
December 14, 1994. Id.{¶16} On November 14, 1994, Watkins, the Trumbull County Prosecuting
Attorney, filed a complaint with the Ohio Supreme Court, seeking a writ of quo
warranto to remove Fiorenzo from office based upon R.C. 2921.41(C)(1). Id. On
December 1, 1994, Fiorenzo filed a motion to dismiss the complaint, arguing that
the writ was premature because he had not yet been “convicted” since sentencing
had not yet occurred. Id. at 259-60. The Ohio Supreme Court disagreed with
Fiorenzo.
{¶17} R.C. 2921.41(C)(1), at that time, provided: “[a] public official * * *
who is convicted of or pleads guilty to, theft in office [R.C. 2921.41(A)] is forever
disqualified from holding any public office, employment, or position of trust in
this state.” Watkins, 71 Ohio St.3d at 260 (emphasis added). Analyzing this
statutory language, the Court in Watkins determined that “the General Assembly
placed ‘convicted’ on equal footing with a guilty plea”; and therefore, the word
“convicted” referred only to a determination of guilt and did not include
sentencing. Id., citing In re Forfeiture of One 1986 Buick Somerset Auto. (1993),
91 Ohio App.3d 558, 562-63, 632 N.E.2d 1351. The Court ultimately determined
that Fiorenzo was disqualified from holding his elected office when he was
adjudicated guilty in November 1994. Watkins, 71 Ohio St.3d at 261.
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{¶18} The statutory language at issue here provides that: “[a] motion
described in this division may be filed at any time subsequent to the conviction of
the offender or entry of a guilty plea.” R.C. 2921.41(C)(2)(b)(i). Like in Watkins,
the statutory language here similarly places “conviction” on an equal footing with
a guilty plea for purposes of filing the forfeiture motion. Therefore, pursuant to
the statute’s plain language and Watkins, we find that sentencing is not required
prior to the filing of a forfeiture motion under R.C. 2921.41(C)(2)(b)(i). As such,
we find that a final judgment of conviction in conformance with Crim.R. 32(C),
which requires a sentence, is unnecessary prior to the filing of a forfeiture motion.
All that is required to trigger the filing of the forfeiture motion under R.C.
2921.41(C)(2)(b)(i) is a judicial finding of guilt of a theft offense as provided in
R.C. 2921.41(A).
{¶19} A judicial finding of guilt of a theft offense, as provided in R.C.
2921.41(A), against Polen was entered on August 29, 2008. (Doc. No. 24). The
forfeiture motion was filed on September 18, 2008. (Doc. No. 28). As such, we
find that the forfeiture motion was filed “at any time subsequent to the conviction
of the offender” as provided in R.C. 2921.41(C)(b)(2)(i). Since R.C. 2921.41 is
the applicable statute in this case, and the trial court proceeded in accordance with
R.C. 2921.41(C)(b)(2)(i), we cannot find that the trial court erred by failing to
incorporate a forfeiture order into its judgment entry of sentence as Polen argues.
{¶20} Polen’s first assignment of error is, therefore, overruled.
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ASSIGNMENT OF ERROR NO. II
O.R.C. §2929.19(A) [SIC] FAILS TO PROVIDE ADEQUATE
NOTICE AND THE OPPORTUNITY FOR A HEARING TO
THE DEFENDANT PRIOR TO FORFEITURE OF
PROPERTY AND THUS VIOLATES THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE FEDERAL
CONSTITUTION AS WELL AS ARTICLE I §16 OF THE
OHIO CONSTITUTION.
{¶21} In her second assignment of error, Polen argues that R.C.
2929.192(A) violates federal and state constitutional due process guarantees. The
State, on the other hand, argues that we need not consider the constitutionality of
R.C. 2929.192(A) since it is not applicable to this case. The State alternatively
argues that the statute is constitutional as it provides for a hearing prior to the
court ordering the forfeiture of property.
{¶22} Having already found R.C. 2929.192(A) inapplicable herein, we also
find R.C. 2929.192(A)’s constitutionality not ripe for review. As the Ohio
Supreme Court has stated, “no constitutional question is ripe for judicial review
‘where the case can be disposed of upon other tenable grounds.’” Hyle v. Porter,
117 Ohio St.3d 165, 2008-Ohio-542, 882 N.E.2d 899, ¶9, citing Van Fossen v.
Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 105, 522 N.E.2d 489, quoting
Ireland v. Palestine, Braffetsville, New Paris, & New Westville Turnpike Co.
(1869), 19 Ohio St. 369, 373. The inquiry at this point would be purely academic,
and we decline to entangle ourselves in such abstract disagreements. Edwards,
2004-Ohio-767, at ¶27, citing Abbott Laboratories, 387 U.S. at 148.
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{¶23} Polen’s second assignment of error is, therefore, overruled.
{¶24} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
/jnc
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