Medina County Courthouse

Wednesday, February 02, 2011

Time Limit for Prosecuting Fraud-Related Crime 'Tolled' While Criminal Act Remains Undiscovered

State v. Cook, Slip Opinion No. 2010-Ohio-6305.
Lucas App. No. L-08-1301, 184 Ohio App.3d 382, 2009-Ohio-4917. Certified question answered, and judgment of the court of appeals affirmed.
Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Lanzinger, J., concurs in judgment only.
Brown, C.J., and Pfeifer, J., dissent.

(Dec. 28, 2010) The Supreme Court of Ohio ruled today that a six-year statute of limitations for a felony offense that contains an element of fraud begins to run only after the corpus delicti (body of the crime) of the offense is discovered. The Court also ruled that a state statute provides one additional year in which to file charges from the date an aggrieved party discovers the corpus delicti of the offense.

The Court’s 5-2 decision, which affirmed a decision of the Sixth District Court of Appeals, was authored by Justice Evelyn Lundberg Stratton.

The case involves criminal charges brought against former Sylvania attorney Linda S. Cook in 2007. Cook was permanently disbarred for falsifying a property deed in July 2001 and engaging in other unethical conduct as part of a scheme in which Cook attempted to obtain for herself large federal income tax deductions arising from a client’s donation of the client’s property to a church. Attorney discipline proceedings against Cook were initiated in February 2004, however Cook’s falsification of the property deed was not formally brought to the attention of the Lucas County prosecutor’s office until the prosecutor received a written notification from the Toledo Bar Association in October 2006.

On July 18, 2007, a grand jury returned an indictment against Cook charging her with felony counts of tampering with records and aggravated theft based on the conduct that resulted in her disbarment. Cook moved for dismissal of the record tampering charge on the basis that her falsification of the deed took place on July 12, 2001, and therefore the six-year statute of limitations for prosecuting that offense had expired on July 12, 2007, six days before she was indicted. The trial court granted the motion to dismiss finding that the statute of limitations had expired.

The state, represented by the Lucas County prosecutor’s office, appealed the dismissal of the record tampering charge. On review, the Sixth District Court of Appeals reversed and reinstated the tampering charge for further proceedings. The court of appeals based its ruling on a different section of the limitations statute, R.C. 2901.13(F), which provides that the limitations period for an offense “will not run during any time when the corpus delicti (body of the crime) remains undiscovered.” Applying that provision to the facts of Cook’s case, the Sixth District held that because Cook’s 2001 falsification of the deed had remained “undiscovered” until at least 2004, the six-year time limit for prosecuting that crime had not begun to run until 2004, and therefore the state’s July 18, 2007 indictment had been returned well within the limitations period. The Sixth District subsequently certified that its interpretation of R.C. 2901.13(F) in cases involving fraud was in conflict with a ruling on the same issue by the Eighth District. The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

In today’s decision, the majority agreed with the state’s argument that it had six years from February 2004 in which to file charges against Cook and that its July 18, 2007 indictment was timely.

Justice Stratton noted that statutory exceptions in the form of specialized rules and tolling provisions impact the calculation of statutes of limitations. “The language in R.C. 2901.13(F) is unequivocal and contains no exception, qualification, or limitation regarding the offense to which it applies, nor does it contain any exception for acts of fraud.”

She disagreed with Cook’s assertion that a 1999 Supreme Court decision, State v. Climaco et al., limits the time the state has to charge a defendant from the date the criminal act occurred. The majority held that Climaco is not controlling in the instant case because the “corpus delicti of the offense in the instant case is found only in the deeds that were created and filed by Cook” and that “the parties agree that the corpus delicti of the offense herein was not discovered until February 2004.”

The majority agreed with the state in its contention that R.C. 2901.13(B)(1) does not apply to the facts in this case. Cook had argued that the general tolling provision in R.C. 2901.13(F) and the specific tolling provision in R.C. 2901.13(B)(1) conflicted. The majority found that the two statues do not conflict.

“R.C. 2901.13(B)(1) gives the state a year within which to file charges where an offense involving fraud or breach of fiduciary duty is discovered by an ‘aggrieved party,’” Justice Stratton wrote. “R.C. 2901.13(F) contains no such qualification. It defies common sense that the General Assembly would give felony offenses a six-year statute of limitations upon discovery of the corpus delicti of the offense, yet limit victims of fraud to only one year.” In reading these two statutes together, Justice Stratton explained “to the aggrieved party or parties who only later discover the offense, R.C. 2901.13(B)(1) provides the state one additional year in which to file charges against the defendant even if the statute of limitations from the initial discovery has expired.”

Justice Stratton’s opinion was joined by Justices Maureen O’Connor, Terrence O’Donnell, Judith Ann Lanzinger and Robert R. Cupp.

Chief Justice Eric Brown and Justice Paul E. Pfeifer issued separate dissenting opinions.

Chief Justice Brown noted that the court in Climaco had recognized that criminal statutes of limitations are intended to encourage law enforcement officials to promptly investigate suspected criminal activity and to protect individuals from having to defend themselves based on facts from the far-distant past. He observed that the majority had broken with the precedent established in Climaco, which recognized the general rule that statutes of limitations begin to run when the crime is complete. “Although the majority effectively overrules Climaco, it fails without explanation to acknowledge that action or to undergo this court’s established analysis for overruling prior cases,” he wrote.

Justice Pfeifer joined Chief Justice Brown’s dissent except in its reference to the Court’s analysis for overruling prior decisions. Justice Pfeifer observed that the Court “has never held applicable to a criminal case the analysis for overturning precedent imposed by a majority of this court in Westfield Ins. Co. v. Galatis.”

Evy M. Jarrett, 419.213.4700, for the state and Lucas County Prosecutor's Office.

John F. Potts, 419.255.2800, for Linda S. Cook.

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