Reacting to an order recently put on by Stark County Court of Common Pleas judge Frank Forchione in the Scott D. Studer case that as part of his sentence on having pled guilty in multiple counts Illegal Use of a Minor in a Nudity-Oriented Material or Performance [R.C. 21907.323(A)(1)](F2) included a requirement that he pay a fine of $5,000.00 "to be forwarded the victims of Newtown, Connecticut tragedy," Conley fired off a letter (January 23rd) to Stark County Prosecutor John Ferrero asking him, on behalf of a client, to institute a civil action against Forchione to recover the money to the Stark County treasury.
Readers will recall as reported in local media that Studer (a former Jackson High School freshman basketball coach) had videotaped numerous student athletes (since 2005) taking showers.
There were various other sentences handed down by Judge Forchione in his order of December 31st including a 15 year prison sentence.
Here is the text of Conley's letter to Ferrero:
January 23, 2013Conley says that his/his client's initiative has gone national, indeed, international (e.g. GOOGLE LINK).
VIA FACSIMILE (3 PAGES TO 330/451-7965) ONLY
Hon. John D. Ferrero
Stark County Prosecuting Attorney
STARK COUNTY PROSECUTORS OFFICE
P.O. Box 20049
Canton, Ohio 44701-0049
Re: State of Ohio v. Scott D. Studer
Stark County Common Pleas Court Case No. 2012 CR 1790
Dear Mr. Ferrero:
As you are aware, in the above-referenced high-profile criminal action, Judge Forchione (with your formal approval) ordered Mr. Studer to “pay a fine in the amount of Five thousand dollars ($5000.00) . . . to be forwarded to the victims of Newtown, Connecticut tragedy”. (Reference the Court’s December 19, 2012 Journal Entry Sentencing Form and December 31, 2012 Judgment Entry/imposition of sentence.)
As you are also aware, on January 2, 2013, under cover of his Court-stationery letter of that same date, Judge Forchione forwarded Mr. Studer’s $5,000.00 check in payment of that fine to the Sandy Hook School Support Fund.(Reference the Court’s January 2, 2013 Judgement Entry, to which Judge Forchione attached his aforesaid cover letter and a copy of Mr. Studer’s $5,000.00 check.)
As you are also aware, Judge Forchione thereafter promptly informed the media of the Fund’s receipt of that check. (See, e.g., a news article entitled “Studer’s check for $5,000 sent to Sand Hook support fund” which was electronically published in The Repository on January 8, 2013.)
Grandstanding issues aside, as I reasonably presume is the case
Hon. John D. Ferrero,
Stark County Prosecuting Attorney
January 23, 2013
Page 2 of 3
with you, I am unaware of any Ohio Revised Code Section authorizing Judge Forchione’s tender of Mr. Studer’s $5,000.00 fine to any entity other than that specified in O.R.C. 2949.11 (effective May 6, 1986 and not since amended), which Code Section provides, in pertinent part, that “. . . an officer who collects a fine shall pay it into the treasury of the county in which such fine was assessed, within twenty days after receipt of the fine, to the credit of the county general fund”. (emphasis supplied)
Indeed, in Ohio v. Cooper (2001), 144 Ohio App. 3d 316, the Eighth District Court of Appeals, citing (at 320 and 321) to that same Code Section, appropriately held “This statute mandates that all fines be paid into the county treasury; a trial court therefore does not have the statutory authority to direct payment of a fine to a charitable organization”. (emphasis supplied)
Along those same lines, in Lane v. Phillabaum (12th Dist. 2008), 182 Ohio App. 3d 145, 2008-Ohio-2502, that Court, citing to that same Code Section, held (at ¶ 18) that “. . . it was improper for the court to order the students to make donations to a particular charity or nonprofit organization . . . rather than paying a fine into the county treasury”. (See also State v. Short (12th Dist. 1992), 1992 WL 158413, for that same basic proposition of law.)
Accordingly, on behalf of the taxpayers of Stark County, and more particularly on behalf of my client, Thomas M. Marcelli (a County resident, taxpayer and electorate), I request you immediately institute a civil action against Judge Forchione for the recovery of and payment into the Stark County Treasury of Mr. Studer’s $5,000.00 fine, plus interest from January 2, 2012 to the date of such recovery and payment. (Reference O.R.C. 309.12 and 309.13.)
In that regard, because you, as the Stark County Prosecuting Attorney, signed your approval of Judge Forchione’s December 31, 2012 Judgment Entry (and/or because of the effect of O.R.C 309.09(A)), I respectfully suggest you should forthwith recuse yourself from any and all future involvement in this matter and
Hon. John D. Ferrero,
Stark County Prosecuting Attorney
January 23, 2013
Page 3 of 3
should request the appointment of a special (out-of-County) prosecutor.
Please promptly advise. Thank you.
Sincerely,
Craig T. Conley
CTC/mps
cc: Thomas M. Marcelli
Stark County Auditor
Stark County Board of Commissioners
Stark County Treasurer
A Repository piece (Attorney challenges judge's decision to sent $5,000 fine to Newtown, January 23, 2013 by Matt Rink) spells out Ferrero's response to the Conley letter, to wit:
Ferrero said his office has reviewed the issue and will amend the judgment entry, a change that won’t require the money to be returned.To which Conley has fired off another letter to Ferrero which in essence says "you cannot do that."
“We will recommend that an amended entry be filed to reflect Judge Forchione’s intentions,” he said. “It will still be payable to the fund the judge wanted. It will be designated as a fine, but to be paid in lieu of paying it to the court. ... We feel that will cure the problem that Mr. Conley is bringing up.”
Conley says that the only permissible-in-law reason for a judge's order to be amended is to correct a clerical error (commonly referred to as being a nunc pro tunc [now for then] order by attorneys).
Conley goes on to claim that Judge Forchione has no jurisdiction to change his issued "final, appealable order" on his own initiative and that the only recourse now is for Ferrero to see to it that the $5,000 gets put in Stark County treasury.
And to fortify the authorities cited in his first letter to Ferrero, he cites an Ohio Supreme Court ethics opinion.
This opinion appears to yours truly to be along the lines of prior legal citations by Conley in the first letter which he says stands for the proposition of law: absent specific statutory authorization. judges cannot order defendants to make charitable contributions as part of their sentencing.
There is a factual difference between Opinion 2010-4 and Studer. In the Opinion, the defendant makes the request to be allowed to make the contribution whereas in Studer the Court takes the initiative.
Is this a significant difference?
We all shall find out in time as Conley pursues his remedy of compelling the payment of the Studer fine into the Stark treasury rather than to the Newtown charity.
Conley and Ferrero have a testy interpersonal history going back at least to the end of June, 2010 (LINK to SCPR on Conley demand letter to Ferrero).
Allegations surfaced on April 1, 2009 that Stark treasury chief deputy Vince Frustaci had stolen Stark County taxpayer funds. Frustaci pled guilty to having stolen $2.45 million of county funds on June 25, 2010.
Zeigler was not implicated in the Frustaci theft.
By existing Ohio law the-then treasurer Gary Zeigler had potential personal liability for any funds coming up missing for whatever reason while he was treasurer.
Eventually the Zeigler and Stark County commissioners reached a settlement agreement on financial issues and Zeigler resigned/retired on October 19, 2011.
The SCPR believes that Conley was a critical factor in enhancing Stark County's ability to recover lost funds at the level it did.
Until he stepped forward, it looked as if Prosecutor Ferrero would be sitting on his hands for a long, long time. Perhaps too long for Stark County to be able (in terms of availability of assets) to have an opportunity to satisfy as much of the loss it did from available resources that existed at the time of Conley's agitation.
As far as Ferrero is concerned with regard to Conley surfacing in the Studer matter, one has to believe he is experiencing a Yogi Berra-esque "deja vu all over again."
The SCPR has attempted to contact Judge Forchione for his reaction to the correspondence. But so far, no response.
The Report would contact Ferrero. However, he - the public official he is - is unwilling to take the SCPR's questions. Yours truly has a history with him of asking tough questions and critiquing the administration/management of his office.
Unfortunately for Stark Countians, Ferrero was reelected to office this past November. Stark's organized Republicans have been unable to find a viable candidate to take him on. In fact, they fielded no candidate is 2008.
But if he ever thinks better of his rash and retributive stance vis-a-vis the SCPR, yours truly stands ready to take his unedited video statement or, if he would rather, his unedited e-mail in response to the Conley demand.
Conley tells The Report that he will give Ferrero a couple of weeks to respond but that his failing to do so would prompt him to file a lawsuit on behalf of his client and long time Stark County civic activist Tom Marcelli.
Moreover, he says it is not a matter of the worthiness of a cause (i.e. Sandy Hook victims) in terms of having fines diverted from the county treasurer nor is it the amount of the money. He assured The Report that he and his client's reaction would be the same if the amount were $5 and the charity was Stark County sited.
Conley says the law is clear on the matter and that he stands ready to ensure by his client's contemplated legal action to see that the $5,000 gets deposited in the Stark treasury.
There are not many Stark County citizens who will go where Conley goes and do what he does in terms of civic activism. It takes a cast iron stomach and an unique ability to more forward in the face of pressure from those who do not cotton up to civic activism.
Whether one agrees with or disagrees with the substance of his effort, he certainly deserves accolades for being willing to take on issues such as the Zeigler matter and the $5,000 Sandy Hook fine payment issue.
Stark County could be in for a protracted battle.
Stay tuned folks!
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