Hey Drew Tyler – that’s ROTFLMAO!
MANSFIELD – Worthington Township may be required to pay back most of the $4,069 it received in restitution last year from a former trustee convicted of theft in office.
The 5th District Court of Appeals issued a ruling April 17 upholding Edwin C. “Clark” Swank’s conviction for putting township diesel fuel into his pickup truck, but it also ruled Judge James DeWeese could not successfully order the former trustee to pay restitution for fuel taken over a span of 13 months, when prosecutors originally indicted him for removing fuel only for two.
***GO FIGURE THAT THE MOST OVERTURNED JUDGE IS OVERTURNED AGAIN – NOW IS DREW STILL ROTFLMAO????
Fiscal Officer Shari K. Leech said Thursday she could not comment on whether the township has spent the $4,069 Swank turned in to the clerk of courts’ office, or set that amount aside in effect in escrow, while Swank appealed his conviction, sentence of two years of community control and order to pay restitution.
Swank paid the full amount to the court system last year, and the $4,069 was then forwarded to Worthington Township, according to clerk of court staff.
Columbus attorney Doug Holthus, who represented Swank in the appeal, said the appeals court recognized the Butler area man owed much less than $4,069.
“We’re pleased that the court took the time to entertain the case and listen to the arguments,” he said. “Obviously, we would have preferred that the entire matter be remanded and set for a new trial.”
Holthus said since Swank apparently had already paid the entire $4,069 in restitution, someone “is going to have to write him a check.”
Swank first began serving as a Worthington Township trustee in 1984. He was charged with theft in office after township road worker Brian Grant noticed in 2012 that fuel was being removed from the township’s diesel fuel tank, after he and another road worker, Craig Hallabrin, left for the day.
Grant began keeping records of all fuel put into township trucks and equipment, and on Nov. 21, 2012, workers set up a motion-activated deer trail camera. Footage showed Swank putting 197 gallons of fuel into his own pickup truck, refueling six times in November and December 2012.
Swank later testified he had been named acting road superintendent, and that he and other trustees had a “gentleman’s agreement” that he could put township fuel in his vehicle to compensate him for travel checking on township roads and supervising road workers.
Former trustee Dale Pore testified an agreement existed, but was never discussed at a meeting or adopted as a resolution.
Swank was sentenced to two years of community control and ordered to pay $4,069 in restitution for missing fuel between October 2012 and November 2013.
Prosecutors had said $748 worth of fuel was taken during the two months in the indictment but argued Swank took $4,069 worth over 13 months.
In its ruling, the appeals court noted the defense failed to object to the larger proposed restitution amount during sentencing, meaning that “plain error” — error so obvious it should have been apparent to a trial court even without an objection — was the only argument left to be made on appeal.
But Judge Baldwin, writing for the three judge panel, said plain error did occur.
“The statute specifically states that the offender is to make restitution for the property that is the subject of the defense,” he wrote.
The case was remanded back to common pleas court so restitution could be recalculated.
The three-judge panel upheld Swank’s conviction, however, noting he acknowledged trustees were permitted mileage reimbursement only for travel outside the county. No township employees outside of Swank or Pore were informed of a gentleman’s agreement, both road workers testified they rarely saw Swank, and Hallabrin testified he believed he, not Swank, had responsibility for determining what work to do each day, Baldwin wrote.
The ruling also noted Swank provided calenders printed in 2014, showing mileage in 2012 of 49 to 64 miles each day, but the total length of township roads was only 46 to 48 miles. While Swank should have been able to drive 2,955 miles with the amount of fuel taken in November and December 2012, his own records showed travel of only 1,259 miles, it said.
“At the trial, the prosecutor never moved to amend the charges,” Holthus said. “It’s really this simple: if a client is charged with stealing two diamond rings on April 23, 1015, and the matter proceeds to trial, and there is some suggestion that our client stole three more diamond rings on April 24, 2015, then the prosecutor has an obligation to move to amend those charges.”
Otherwise, the conviction and penalty could only stem from the original indictment, he said.
The assistant county prosecutor who handled Swank’s appeal could not be reached as she has taken another job outside that office.