Plea agreement reached in Clerkin case; candidacy status still debated

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Former Switzerland County Highway Superintendent and current candidate for Switzerland County Commissioner Christopher Clerkin accepted a plea bargain last Thursday, ending what would have been the fourth day of his trial on charges of Theft, a Class D Felony, Failure to Deposit Public Funds, a Class D Felony, and Official Misconduct, a Class D Felony. All of the charges stemmed from his theft of scrap metal proceeds throughout his tenure as Switzerland County Highway Superintendent.

The plea agreement ends the criminal proceedings, but the real question with residents of the county now centers on whether or not Clerkin can still remain a candidate for the County Commissioner post. He is a candidate in the Republican Primary for County Commissioner in District One.

In an official press release from the offices of special prosecutors Shane A. Tucker and Ryan M. Marshall, the plea and sentence were as follows:

“On April 21, 2016, former Switzerland County Highway Department Superintendent, Chris Clerkin pled guilty to Theft, a Class D Felony, in the middle of his jury trial. During his plea hearing, Clerkin admitted under oath that during 2012 through 2013 he knowingly or intentionally exerted unauthorized control over property of the Switzerland County Highway Department with the intent to deprive the County of its value. Specifically, Clerkin admitted he received money in his capacity as Switzerland County Highway Superintendent from the proceeds of the sale of scrap metal and kept the proceeds that belonged to the county. On Monday, April 18, 2016, Clerkin’s jury trial started where he was facing charges of Theft, a Class D Felony, Failure to Deposit Public Funds, a Class D Felony, and Official Misconduct, a Class D Felony. All of the charges stemmed from his theft of scrap metal proceeds throughout his tenure as Switzerland County Highway Superintendent. A jury was empaneled and the State began its case in chief.

Evidence was presented that during 2012 through 2013 there were 15 receipts produced where scrap metal was sold by the Highway Department totaling $7,394.40. Further evidence was presented that during that same period only 3 deposits were made to the County Auditor referencing the sale of scrap metal totaling $540.85. Prior to the Defendant pleading guilty, the last portion of evidence presented by the State was the testimony of a number of Highway Department employees that stated they would be ordered by Clerkin to haul scrap to Schneiders in Osgood, Indiana, where the employees would then give the payment and receipt to Clerkin immediately upon their return. Had Clerkin not plead guilty in the middle of the State’s case in chief, the State intended to have approximately 10 more witnesses testify, including additional highway employees that the State believed were going to testify that they had provided the funds directly to Clerkin and witnessed other employees do the same.

Pursuant to a plea agreement, Clerkin was sentenced to 270 days of probation and is required to pay the Switzerland County Highway Department $3,000 in restitution. In exchange for Clerkin’s willingness to accept responsibility for his actions and his lack of criminal history, the conviction will be entered as a misdemeanor.”

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The difference in the language is vital to the future of Clerkin’s candidacy.

A person who is convicted of a felony is disqualified from being a candidate for public office under Indiana Code Section 3-8-1-5:

(b): As used in this section, a “felony” means a conviction in any jurisdiction for which the convicted person might have been imprisoned for more than one (1) year. However, the term does not include a conviction: (1) for which the person has been pardoned; or (2) that has been: (A) reversed; (B) vacated; (C) set aside; or (D) not entered because the trial court did not accept the person’s guilty plea.

Also in Indiana Code Section 3-8-1-5 is this:

(3) in a: (A) jury trial, a jury publicly announces a verdict against the person for a felony.

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Brookville attorney Jud McMillin, who represented Clerkin at trial, points to these two sections as evidence that Clerkin can remain on the ballot and a candidate for the County Commissioner’s seat.

“I’ve talked with Dale Simmons and Brad King at the Election Commission, and I explained to them what my reading of the statute was, and while they are not somebody who stands in a position to be a final decider of fact, I think it’s fair to say that their conclusion was: ‘You raise a very good point, and it’s not for us to make this determination’. If somebody wants to challenge his candidacy, I’m sure somebody will hear one side of the argument and the other side of the argument, and whoever’s supposed to make that decision will then make the decision.”

McMillin says that if, in IC 3-8-1-5 defines a ‘felony’ is when a person “might have been imprisoned for more than one year”, then the fact that Clerkin was sentenced to 270 days – nine months – takes his case under that one year threshold, so it doesn’t disqualify him because that’s less than one year.

“This is going to get into some statutory construction stuff that people are welcome to fight about all they want,” McMillin continued. “Section B gives a very specific definition for what a felony is under that section. That tells us what a felony is for this one section of the code. That is where it says that a person might have been imprisoned for more than one year. Then if you go down to Section 3, there are three disqualifying events that could lead to somebody in Chris’s position not being eligible to be on the ballot.

“In a jury trial with a publicly announced verdict, which did not occur,” McMillin continued. “A bench trial with a publicly announced verdict, which did not occur. Both those didn’t occur because we reached a plea agreement. And then it says a guilty plea hearing where the person pleads guilty or nolo contendre to a felony. In Chris’s case, there was a written plea agreement, and in the written plea agreement, that was signed by him, myself, and the state, called for nine months of probation.”

McMillin also spoke about the plea agreement itself.

“The law is very clear that when there is a written plea agreement, the court is bound by the terms of that agreement, they can’t go any other direction,” McMillin continued. “If they accept it, they have to do exactly what it says. The only other option that they have is to reject it, and if they reject it, you’re not disadvantaged, you’re just right back where you started, which in Chris’s case would have been starting day four of his trial.

“My contention is that this does not constitute a felony as it’s defined in subsection B, because he entered into a written plea agreement that only allowed him to be sentenced to nine months, there never was the opportunity where he might have been imprisoned for more than one year.”

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So, with the actual Primary Election Day now just days away; and the fact that many county residents have already cast their ballots through the traveling voting centers, is Clerkin eligible to stand for election, or not?

McMillin says that his conversations with the State Election Division lead him to the conclusion that Clerkin will stay on the ballot, and if someone or some entity would like to challenge that conclusion, then they have legal rights to do so.

“The State Election Division said that they don’t stand in a position to make the final determination,” McMillin said. “If somebody wants to ask for injunctive relief or declaratory judgment, based on what this law is, applied to the facts that you have, then somebody will have to ask for a court to do that, and let the court make that determination.”

McMillin said that it is his view that there are only two ways that Clerkin can come off of the ballot: if Clerkin elects to take himself off of the ballot by conceding and signs off in the Clerk’s office; or if somebody gets a judgment from a court that would require him to come off.

Because there is such a short time before election day this Tuesday, should that judgment come after the primary – and if Clerkin were to win the primary – then he would be removed from the General Election ballot in November and the Precinct Committeemen of the Republican Party here in Switzerland County would choose another candidate to fill that slot on the ballot.

Of course, all of this means nothing is Clerkin loses Tuesday’s primary, because there would be nothing to challenge. Whether or not a judgment has the time to be secured prior to Tuesday is unknown, as would Clerkin’s right to challenge that judgment and get himself returned to the ballot if it were overturned.

“Unless he wins the election in the primary, then none of it matters,” McMillin said.

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Dale Simmons, co-legal counsel for the Indiana Election Commission, said that his office has received many different calls from many different entities, but the Commission has not officially received a copy of the plea agreement itself, so his office has had to go on explanations by others.

“I don’t know exactly what the facts are on the ground,” Simmons said. “Jud McMillin did talk with us about what his interpretation of what happened was.”

Simmons said that without first hand knowledge or documentation, rendering an official opinion is difficult.

So, based on the information that Simmons has received from law enforcement and McMillin, is it his interpretation that Clerkin should remain on the ballot?

After hearing the press release that was provided by the prosecution, where it says that the conviction was entered as a misdemeanor, Simmons shared his thoughts.

“So the conviction’s for a misdemeanor? So yes, if the conviction is for a misdemeanor, and it never was a felony, then there’s a definitional problem in (IC) 3-8-1-5. 3-8-1-5 disqualifies candidates for being convicted of a felony. There’s also a subsection in there that says, well, if this conviction is deemed to have happened if a person pleads guilty to a felony in a plea hearing. But then again, the first section of that says that, well, a felony conviction means a ‘conviction’ of a felony, otherwise defined in this section. I guess Jud’s argument was, well, subsection B, which defines felony as a conviction of a felony. You would think the word conviction modifies the word felony when you use them in the same sentence, right? He was never convicted of that felony.”

Simmons said McMillin used that to argue that since Clerkin was never convicted of a felony, then he is not disqualified (from continuing to run for office). He asked Brad and I if those are the facts, is that a plausible argument? I thought it was plausible. I think it was a straight faced argument; now whether the people in the community want to argue this out in court is up to them; but I think at least from Jud’s argument perspective, he’s got a defense to it. Because there was never a conviction entered on a felony. If there was a conviction on a felony, then that would clearly come within this section. There’s a statute, 3-8-2-20, that would require him to withdraw. The way it’s written it says that if you’re disqualified in 3-8-1-5, it doesn’t matter when it is, you’re required to immediately withdraw. So that question is: is he disqualified under 3-8-1-5? Jud’s argument is, no, he was never convicted of a felony.”

Simmons said that he isn’t sure that the state legislature considered such a circumstance as this.

“We might want to take this back to the legislature to have a look at it, too,” he said.