State v. Loewinger ( 2011 )

[Cite as State v. Loewinger, 2011-Ohio-5669.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96531
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
FRED LOEWINGER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535936
BEFORE: Kilbane, A.J., Blackmon, J., and Jones, J.
RELEASED AND JOURNALIZED: November 3, 2011
ATTORNEY FOR APPELLANT
Harvey B. Bruner
1600 Illuminating Building
55 Public Square
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Michael E. Jackson
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, A.J.:
{¶ 1} Defendant-appellant, Fred Loewinger (Loewinger), appeals his sentence.
Finding no merit to the appeal, we affirm.
{¶ 2} In April 2010, Loewinger and 15 codefendants were charged in a
multi-count indictment involving mortgage fraud. The indictment states that Loewinger
owned a mortgage broker company named Fast Mortgage Services, Inc. Loewinger
acted as a loan officer and prepared loan applications that were submitted to lenders for
approval. He selected appraisers to value the properties for the loan purposed and
consulted with Titles, Etc., Inc. to close the 20 transactions listed in the indictment.
Titles, Etc., Inc. is owned by codefendants Mitchel Petti and Mark Petti. Loewinger
performed these activities in a fraudulent manner as the head of the criminal enterprise,
which engaged in a series of fraudulent mortgage schemes designed to obtain control over
the loan proceeds and distributed those illegally obtained proceeds to others participating
in the enterprise.
{¶ 3} Count 1 charged Loewinger with engaging in a pattern of corrupt activity (a
first degree felony, with the value of loss greater than $1,000,000 and a mandatory
ten-year prison sentence); Count 2 charged him with conspiracy to commit the crime of
engaging in a pattern of corrupt activity; Count 3 charged him with money laundering;
Counts 4, 5, 74, and 75 charged him with theft by deception; Counts 10, 14, 18, 22, 26,
30, 34, 38, 42, 46, 50, 54, 58, 62, 66, 70, 82, 86, 90, and 94 charged him with securing
writings by deception; Counts 11, 15, 19, 23, 27, 31, 35, 39, 43, 47, 51, 55, 59, 63, 67, 71,
83, 87, 91, and 95 charged him with receiving stolen property; Counts 12, 16, 20, 24, 28,
32, 36, 40, 44, 48, 52, 56, 60, 64, 68, 72, 84, 88, 92, and 96 charged him with tampering
with records; Counts 13, 17, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57, 61, 65, 69, 73, 85, 89,
93, and 97 charged him with telecommunications fraud; and Count 98 charged him with
forfeiture.
{¶ 4} Pursuant to a plea agreement, Loewinger pled guilty to the following:
engaging in a pattern of corrupt activity, as amended in Count 1 (a second degree felony,
with the value of loss being more than $500,000, but less than $1,000,000); money
laundering as listed in Count 3; theft by deception as listed in Counts 4, 5, and 74; and
tampering with records as listed in Counts 12, 16, 20, 24, 28, 32, 36, 40, 44, 48, 52, 56,
60, 64, 68, 72, 84, 88, 92, and 96. The remaining counts were nolled. The trial court
sentenced Loewinger to six years in prison on Count 1 and three years in prison on each
of Counts 3, 4, 5, 12, 16, 20, 24, 28, 32, 36, 40, 44, 48, 52, 56, 60, 64, 68, 72, 74, 84, 88,
92, and 96, to be served concurrently for a total sentence of 6 years. The trial court also
ordered restitution in the amount of $1,431,250.58.
{¶ 5} Loewinger now appeals, raising the following single assignment of error for
review.
ASSIGNMENT OF ERROR ONE
“[Loewinger] received ineffective assistance of counsel at sentencing.”
{¶ 6} In order to substantiate a claim for ineffective assistance of counsel,
Loewinger must demonstrate “(a) deficient performance (‘errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment’)
and (b) prejudice (‘errors * * * so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable’). Strickland v. Washington (1984), 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674. Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373.” State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29,
¶30.
{¶ 7} In Ohio, a properly licensed attorney is presumed competent. Vaughn v.
Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164. In evaluating whether a petitioner
has been denied the effective assistance of counsel, the Ohio Supreme Court held that the
test is “whether the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304,
paragraph four of the syllabus. When making that evaluation, a court must determine
“whether there has been a substantial violation of any of defense counsel’s essential
duties to his client” and “whether the defense was prejudiced by counsel’s
ineffectiveness.” State v. Lytle (1976), 48 Ohio St.2d 391, 358 N.E.2d 623; State v.
Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905. To demonstrate that a
defendant has been prejudiced, the defendant must prove “that there exists a reasonable
probability that, were it not for counsel’s errors, the result of the trial would have been
different.” Bradley at paragraph three of the syllabus.
{¶ 8} Loewinger argues that he received ineffective assistance when defense
counsel failed to highlight the level of cooperation Loewinger provided with the State and
that he accepted responsibility for his conduct. He claims defense counsel should have
highlighted the numerous hours he spent with the assistant county prosecutor, FBI agents,
and other investigators in order to assist the State in building its case against codefendants
and brothers, Mitchel Petti and Mark Petti.
{¶ 9} As the owners of Titles, Etc., Inc., the Petti brothers assisted Loewinger by
deceiving the lenders to make it appear as if the buyer paid the required down payment
toward the purchase of the property when the loan closed. The fake down payments
were made in the form of official bank checks or transfers made payable to Titles, Etc.,
Inc., which was the entity responsible for closing the loans. They also assisted
Loewinger by submitting different HUD documents to the lender when compared to the
information on the forms in the loan officer’s file. They further assisted Loewinger by
making kick-back payments to Loewinger’s company, MJL Processing, Ltd., Inc., at the
time of the real estate closing, for services never rendered, or inflated amounts of services
were provided. The Petti brothers were both charged with 88 counts and both proceeded
to a bench trial, at which Mitchel Petti was found guilty of 13 counts and Mark Petti was
found not guilty of all counts. The trial court sentenced Mitchel Petti to three years of
community control sanctions, with 20 weekends in jail.
{¶ 10} In the instant case, a review of the record reveals that the trial court was
presented with ample evidence of Loewinger’s cooperation and acceptance of
responsibility. The prosecutor noted that Loewinger cooperated as a witness in the Petti
brothers’ trial and that Loewinger is expected to be called as a witness in future trials.
{¶ 11} Defense counsel then addressed the court by acknowledging the favorable
points mentioned by the prosecutor. Counsel reiterated that Loewinger has taken full
responsibility for his conduct. Counsel also stated that the lenders contributed to the
harm to the community. Counsel noted that Loewinger is 62 years old, the offenses were
nonviolent, Loewinger did not have a significant record, and Loewinger testified without
any promise relating to his sentence. Counsel requested that Loewinger receive a
sentence closer to the minimum, rather than the six years requested by the State. The
trial court then acknowledged that Loewinger was the head of this criminal enterprise and
by cooperating, Loewinger’s cooperation “got rid of the most serious charge; mandatory
time.” The trial court sentenced him to six years in prison.
{¶ 12} Loewinger was faced with an 88-count indictment, with Count 1 carrying a
mandatory ten-year prison sentence, plus one to five years on the remaining counts.
Defense counsel was able to broker a plea agreement by which 63 counts were dismissed
and the mandatory ten-year sentence was eliminated. This result cannot be considered
deficient performance. See State v. Holt, Cuyahoga App. No. 94039, 2010-Ohio-5591,
¶40, citing State v. Corbin, 141 Ohio App.3d 381, 2001-Ohio-4140, 751 N.E.2d 505(where this court found that defense counsel was not ineffective when counsel brokered a
plea agreement by which 9 out of 12 counts were dismissed and the remaining counts
were amended in appellant’s favor.)
{¶ 13} Loewinger further argues defense counsel’s ineffectiveness is evidenced by
the disparity between his sentence (six years in prison) and Mitchel Petti’s sentence (three
years of community control sanctions, with 20 weekends in jail). This argument is
unpersuasive because Mitchel Petti was sentenced after Loewinger. Thus, it was not
feasible for defense counsel to argue for a lesser sentence based on Mitchel Petti’s
sentence when Loewinger was sentenced almost a month earlier.
{¶ 14} Based on the foregoing, we find that Loewinger has not established
ineffective assistance of counsel. The record does not indicate that defense counsel
failed in his essential duties or that his performance fell below an objective standard of
reasonableness.
{¶ 15} Accordingly, the sole assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
PATRICIA A. BLACKMON, J., and
LARRY A. JONES, J., CONCUR