STATE GAINS v. THOMAS (1998)

Court of Appeals of Ohio,Seventh District, Mahoning County.

The STATE ex rel. GAINS, Pros. Atty., v. THOMAS.

No. 98 C.A. 52.

Decided: June 01, 1998

Paul J. Gains, Mahoney County Prosecuting Attorney, Youngstown, for relator. Raymond M. Tarasuck, Jr., Youngstown, for respondent.

Relator Paul J. Gains's motion for summary judgment is granted.   This court is well aware that the respondent has been elected by his neighbors to represent the First Ward of the city of Struthers on the Council of Struthers.

In his answer to the complaint, the respondent admitted that he had been elected in a general election held on or about November 1997 to the position of  councilman for the First Ward in Struthers, that the election results were certified on November 26, 1997, and that the respondent assumed office as councilman on or about January 1, 1998.   The respondent further admitted in his answer that on or about August 7, 1987, in the United States District Court for the Northern District of Ohio, he was convicted on a federal indictment of use of a communication facility to distribute cocaine in contravention of Section 843(b), Title 21, U.S.Code, and was sentenced to eighteen months of incarceration and assessed the sum of $50.   R.C. 2961.01 reads as follows:

“A person convicted of a felony under the laws of this or any other state or the United States, unless his conviction is reversed or annulled, is incompetent to be an elector or juror, or to hold an office of honor, trust, or profit.   When any such person is granted probation, parole, or a conditional pardon, he is competent to be an elector during the period of probation or parole or until the conditions of his pardon have been performed or have transpired, and thereafter following his final discharge.   The full pardon of a convict restores the rights and privileges so forfeited under this section, but a pardon shall not release a convict from the costs of his conviction in this state, unless so specified.”

In this summary judgment proceeding, the respondent has come forth with no competent evidence to establish that the disability inflicted pursuant to R.C. 2961.01 has been removed since his conviction in the federal court.

Respondent Daniel L. Thomas is forthwith removed from the office of councilman for the First Ward of the city of Struthers, Ohio. The respondent shall pay the costs of this action.

Judgment accordingly.

PER CURIAM.

COX, JOSEPH E. O'NEILL and WILLIAM M. O'NEILL, JJ., concur. JOSEPH E. O'NEILL, J., retired, of the Seventh Appellate District, sitting by assignment. WILLIAM M. O'NEILL, J., of the Eleventh Appellate District, sitting by assignment.