State v. Climaco, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A.

• Decision Date: 02 June 1999
• Docket Number: No. 98-616,98-616
• Citation: 709 N.E.2d 1192,85 Ohio St.3d 582
• Parties: The STATE of Ohio, Appellee, v. CLIMACO, CLIMACO, SEMINATORE, LEFKOWITZ & GAROFOLI COMPANY, L.P.A., Appellant.
• Court: Ohio Supreme Court

Page 582

85 Ohio St.3d 582

709 N.E.2d 1192

The STATE of Ohio, Appellee, v. CLIMACO, CLIMACO, SEMINATORE, LEFKOWITZ & GAROFOLI COMPANY, L.P.A., Appellant.

No. 98-616.

Supreme Court of Ohio.

Submitted Feb. 23, 1999.

Decided June 2, 1999.

In early February 1994, as a result of press scrutiny, the Attorney General's Office began investigating five lobby groups for failing to comply with the requirements of R.C. 101.72 and 101.73. These statutes require legislative agents and employers of legislative agents to register with the Joint Legislative Ethics Committee ("JLEC") (formerly with the Joint Committee on Agency Rule Review ["JCARR"] ), and to file an updated registration statement and expenditure report three times a year. "Legislative agent," the statutory term for lobbyist, is defined in R.C. 101.70. At the time, honoraria were legitimate expenditures and were required to be listed as such. ¹

A February 9, 1994 article in The Columbus Dispatch discussed the Attorney General probe. The article mentioned the possibility of broadening the investigation following disclosures made by Senator Eugene Watts that he had received honoraria at a May dinner hosted by legislative agent Paul Tipps. The law firm of Climaco, Climaco, Seminatore, Lefkowitz and Garofoli ("Climaco") was implicated for improperly reporting honoraria. The Plain Dealer also reported on the probe. The Plain Dealer article immediately prompted an associate of Climaco to call Thomas Sherman, then Executive Director of JCARR, with questions about the propriety of its filings.

A few days after the newspaper article and telephone call, Kenneth Seminatore, a principal partner at Climaco, sent a letter to Sherman stating that according to past practices and his interpretation of the reporting requirements, he felt that there was no need to report the honoraria. However, he explained that if his interpretation was incorrect, he would gladly amend the statements, as he had no intention of evading the reporting requirements.

In a letter dated February 28, 1994, Sherman apologized to Seminatore for any confusion caused by earlier discussions he had had with an associate of the Climaco law firm but stated that he believed the honoraria must be reported.

Seminatore responded to Sherman's letter on March 11, 1994. In his letter, Seminatore wrote, "While we have an honest disagreement about your interpretation * * *, my desire is to err on the side of disclosure." Seminatore included an amended updated registration statement for the May through August 1993 reporting period. This letter was followed by another letter from Seminatore dated March 22, 1994, which included amended registration statements covering January through April for the years 1992 and 1993 and September through December for the year 1993. Seminatore was not alone in filing amended statements. In fact, after the first news stories were reported, at least ten groups and individuals rushed to file revised or late expenditure reports. Sherman admitted that there was no system in place to review submitted reports for accuracy.

Meanwhile, on March 15, 1994, the Attorney General issued his report regarding the investigation of the updated registration statements filed by the five groups referred to him in February 1994. Climaco was not one of the groups investigated. In his report, the Attorney General concluded that violations of the reporting laws might have been committed by some of the groups. He reported his findings to the Franklin County Prosecutor.

In June 1994, the Franklin County Prosecutor appointed a special prosecutor, James Meeks, to investigate the payment, receipt, and reporting of honoraria. Meeks issued his report on December 21, 1994. Although Meeks focused in large part on the conduct of Ohio legislators, he also scrutinized Tipps's dinner parties and found no illegalities on Climaco's part. The investigation appeared over.

However, on February 9, 1995, The Columbus Dispatch carried another article about the honorarium probe. The article accused Franklin County Prosecuting Attorney Michael Miller of delaying the nearly year-old probe into allegations that two other groups (not Climaco) had violated the state's lobbyist law by failing to report payments to legislators.

According to a newspaper report, on February 24, 1995, JLEC sent the instant matter to the Franklin County Prosecutor. A grand jury eventually investigated the matter. On August 25, 1995, Seminatore and Climaco filed a motion to quash grand jury subpoenas, arguing in part that the statute of limitations had expired.

On February 1, 1996, the Franklin County Prosecutor filed indictments against Seminatore and Climaco for two counts of falsification, violations of R.C. 2921.13, in connection with their June and October 1993 updated registration statement filings.

Seminatore and Climaco filed several motions to dismiss, raising, inter alia, issues of statute of limitations, lack of jurisdiction, and selective prosecution. After a hearing, all motions were denied. In February 1997, Climaco pleaded no contest to two counts of failing to file accurate updated registration statements, in violation of R.C. 101.71(C). Climaco was convicted and ordered to pay a fine of $2,000 on each count. Climaco appealed, and the court of appeals affirmed.

The cause is now before this court upon the allowance of a discretionary appeal.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellee.

Chester, Willcox & Saxbe and J. Craig Wright, Columbus; Climaco, Climaco, Lefkowitz & Garofoli Co., L.P.A., John R. Climaco, Thomas M. Wilson, Michael P. Maloney and John F. Corrigan, Cleveland, for appellant.

FRANCIS E. SWEENEY, Sr., Justice.

We are asked to determine whether the statute of limitations in R.C. 2901.13 barred appellant's prosecution for falsification. For the following reasons, we find that it did. Accordingly, we reverse the court of appeals.

The February 1, 1996 indictment alleged that appellant knowingly made false statements in violation of R.C. 2921.13 when it filed its June and October 1993 "Employer of Legislative Agent Updated Registration Statements." R.C. 2921.13(A)(7) states, "No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies: * * * The statement is in writing on or in connection with a report or return that is required or authorized by law." A violation of R.C. 2921.13(A)(7) is a first-degree misdemeanor.

R.C. 2901.13 sets forth the statute of limitations for criminal prosecutions. It stated:

"(A) Except as otherwise provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed:

" * * *

"(2) for a misdemeanor other than a minor misdemeanor, two years;

" * * *

"(E) A prosecution is commenced on the date an indictment is returned * * *.

"(F) The period of limitation shall not run during any time when the corpus delicti remains undiscovered." 134 Ohio Laws, Part II, 1866, 1896-1897.

Appellant contends that the plain language of R.C. 2901.13(A)(2), now (A)(1)(b), requires a prosecution to be commenced within two years after the offenses were committed. Because the alleged acts of falsification occurred in June and October 1993, appellant asserts that the statute of limitations expired in June and October 1995. ² However, the state contends that because the offenses were not discovered until February 1994, the tolling provision of subsection (F) applies, and, therefore, the state had until February 1996 to bring an indictment. The state relies on the phrase in subsection (A) "[e]xcept as otherwise provided in this section" in order to reach the tolling provision of subsection (F). The state also relies upon our reaffirmation of the definition of "corpus delicti" in State v. Hensley (1991), 59 Ohio St.3d 136, 138, 571 N.E.2d 711, 713, i.e., corpus delicti is the body or substance of the crime and is made up of two elements: (1) the act itself and (2) the criminal agency of the act. Using this definition, the state asserts that although the offenses were committed in June and October 1993, the criminal agency of the acts did not come to surface until the February 1994 sequences of events. In light of the salutary purposes of a criminal statute of limitations, as well as other policies and principles, we decline to adopt the state's position.

The primary purpose of a criminal statute of limitations is to limit exposure to prosecution to a certain fixed period of time following the occurrence of those acts the General Assembly has decided to punish by criminal sanctions. Toussie v. United States (1970), 397 U.S. 112, 114-115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156, 161. This "limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past." Id. Additionally, such a time limit has the salutary effect of encouraging law enforcement officials to promptly investigate suspected criminal activity. Id. We recognized these purposes in Hensley, 59 Ohio St.3d at 138, 571 N.E.2d at 714, where we found that the intent of R.C. 2901.13 is to discourage inefficient or dilatory law enforcement rather than to give offenders the chance to avoid criminal responsibility for their conduct. We stated, " 'The rationale for limiting criminal prosecutions is that they should be based on reasonably fresh, and therefore more trustworthy evidence,' " quoting the Ohio Legislative Service Commission comment to R.C. 2901.13.

We also consider the rule of statutory construction stated in R.C. 2901.04(B) ("Rules of criminal procedure and sections of the Revised Code providing for criminal procedure shall...