State ex rel. Watkins v. Fiorenzo - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO

**** SUBJECT TO FURTHER EDITING ****

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The State ex rel. Watkins, Pros. Atty., v. Fiorenzo, Cty. Eng.
[Cite as State ex rel. Watkins v. Fiorenzo (1994), Ohio
St.3d .]
Public employment -- Writ of quo warranto ousting county
engineer from office allowed, when -- County engineer
disqualified from his position when adjudicated guilty of
theft in office -- R.C. 2921.41 (C)(1), construed.
(No. 94-2446 -- Submitted December 7, 1994 -- Decided
December 16, 1994.)
In Quo Warranto.
On Motion to Dismiss, Motion for Peremptory Writ, and
Motion for Expedited Consideration.
Relator, Dennis Watkins, is the Trumbull County
Prosecuting Attorney. Respondent, James P. Fiorenzo, was
elected as the Trumbull County Engineer for a term of office
from January 4, 1993 to January 4, 1997. On November 8, 1994,
following a trial in the Trumbull County Court of Common Pleas,
the court found Fiorenzo guilty of one count of complicity in
theft in office in violation of R.C. 2923.03 and 2921.41(A)(1),
four counts of forgery in violation of R.C. 2913.31(A)(2), and
one count of theft in office in violation of R.C.
2921.41(A)(1). The court made a finding of guilt on November
10, 1994, ordered a presentence investigation, and set
sentencing for December 14, 1994.
On November 14, 1994, Watkins filed a complaint in this
court seeking a writ of quo warranto ousting Fiorenzo from the
position of Trumbull County Engineer. On December 1, 1994,
Fiorenzo filed a Civ.R. 12(B)(6) motion to dismiss Watkins's
complaint, asserting that it fails to state a claim upon which
relief can be granted. On December 5, 1994, Watkins requested
a peremptory writ of quo warranto and expedited consideration.

Dennis Watkins, Trumbull County Prosecuting Attorney, and
Patrick F. McCarthy, Assistant Prosecuting Attorney, for
relator.

Charles E. Dunlap, Don L. Hanni, Jr., and J. Walter
Dragelevich, for respondent.

Per Curiam. R.C. 2733.14 provides that when a respondent
"in an action in quo warranto is found guilty of usurping,
intruding into, or unlawfully holding or exercising an office,
*** judgment shall be rendered that he be ousted and excluded
therefrom, and that relator recover his costs." "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." R.C. 2921.41(C)(1).
A public official who is convicted of theft in office is
statutorily disqualified from holding public office, and a writ
of quo warranto will issue to remove the official from public
office. State ex rel. Corrigan v. Haberek (1988), 35 Ohio
St.3d 150, 518 N.E.2d 1206. Fiorenzo concedes that he has been
found guilty of several felonies, including theft in office.
However, Fiorenzo contends that the instant action is
"premature since he has never been sentenced" and his motion
for new trial has not been ruled upon. Watkins contends that
R.C. 2921.41(C)(1) requires only a finding of guilt and not a
concomitant sentence in order to invoke the permanent
disqualification sanction.
Fiorenzo relies on State v. Henderson (1979), 58 Ohio
St.2d 171, 12 O.O.3d 177, 389 N.E.2d 494, for the proposition
that the word "convicted" as used in R.C. 2921.41(C)(1)
includes both the guilt determination and the imposition of
sentence. In Henderson, at paragraphs one and two of the
syllabus, we held that a defendant who has pled guilty but is
awaiting sentencing for a theft offense has not been previously
convicted of a theft offense within the meaning of R.C.
2913.02(B), and that in order to constitute a prior theft
conviction, there must be a judgment of conviction, as defined
in Crim.R. 32(B), for the prior offense. Crim.R. 32(B)
provides that a "judgment of conviction shall set forth the
plea, the verdict or findings, and the sentence."
Henderson recognizes that the term "conviction" normally
includes both the finding of guilt and the sentence. State v.
Carter (1992), 64 Ohio St.3d 218, 222, 594 N.E.2d 595, 599;
State v. Poindexter (1988), 36 Ohio St.3d 1, 5, 520 N.E.2d 568,
572; cf. State v. Cash (1988), 40 Ohio St.3d 116, 532 N.E.2d
111, syllabus. However, the language of R.C. 2921.41(C)(1)
specifies permanent disqualification from, inter alia, any
public office in this state if the public official is either
"convicted of or pleads guilty to, theft in office ."
(Emphasis added.) Unlike in R.C. 2913.02(B), the General
Assembly placed "convicted" on equal footing with a guilty plea
in R.C. 2921.41(C)(1).
Thus, the plain language of R.C. 2921.41(C)(1) requires
only a plea of guilty to invoke the sanction of permanent
disqualification. Therefore, we believe the word "convicted"
as used in R.C. 2921.41(C)(1) logically refers only to a
determination of guilt and does not include sentencing upon
that determination. The Court of Appeals for Auglaize County
in In re Forfeiture of One 1986 Buick Somerset Auto. (1993), 91
Ohio App.3d 558, 562-563, 632 N.E.2d 1351, 1353-1354, reached a

similar conclusion in construing the phrase "pleads guilty to
or is convicted" of R.C. 2933.43(C)
Moreover, the public interest is best served by precluding
the possibility of further illegal activities when an official
has either been adjudicated guilty or pled guilty to theft in
office but is awaiting sentencing. Therefore, Fiorenzo was
disqualified from his position as Trumbull County Engineer when
he was adjudicated guilty of theft in office in November 1994.
Similarly, R.C. 2921.41(C)(1) does not specify that a pending
motion for a new trial must be ruled upon in order for the
disqualification upon conviction or guilty plea to become
effective. Given the interest in a speedy resolution of this
case, see R.C. 2733.39, we allow a peremptory writ of quo
warranto removing Fiorenzo from the position of Trumbull County
Engineer forthwith. Fiorenzo's motion to dismiss is overruled,
and Watkins's motion to expedite is granted.

Writ allowed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.