State v. Rigsbee ( 2013 )

[Cite as State v. Rigsbee, 2013-Ohio-1239.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 31
v. : T.C. NO. 06CR253
CHERYL L. RIGSBEE : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 29th day of March , 2013.
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KEVIN S. TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor, 200 N. Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E.,
Bloomingburg, Ohio 43106
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Cheryl Rigsbee appeals from a judgment of the Champaign County
Court of Common Pleas, which denied without a hearing her Crim.R. 32.1 motion to
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withdraw her plea after sentencing. For the following reasons, the judgment of the trial
court will be affirmed.
{¶ 2} Rigsbee was accused of stealing money from her employer for
approximately five years from 2001 to 2006. “Specifically, Rigsbee would make checks
payable to herself and then endorse the checks with her supervisor’s signature stamp. Each
check was made out for less than $10,000 in order to circumvent the company’s policy that
checks for more than $10,000 required two signatures. Rigsbee would then cash the checks,
keeping the money for personal use. When the cancelled checks were returned by the bank,
Rigsbee would immediately shred them. She also would alter the information in the
company’s weekly financial reports before submitting them to her supervisor in order to
conceal her wrongdoing.” State v. Rigsbee, 174 Ohio App.3d 12, 2007-Ohio-6267, 880
N.E.2d 527, ¶ 2 (2d Dist.).
{¶ 3} Rigsbee’s conduct was eventually discovered by her supervisor, and it was
reported to the police. The company’s investigation revealed that she had forged 235
checks totaling over $1.9 million. Rigsbee spent the money on a wide variety of personal
items, trips, payments on student loans, and gifts to family and friends.
{¶ 4} In December 2006, Rigsbee pled guilty to one count of aggravated theft (by
deception) of $1 million dollars or more, in violation of R.C. 2913.02(A)(2) and (B)(2), six
counts of forgery, in violation of R.C. 2913.31(C)(1), and one count of tampering with
records, in violation of R.C. 2913.42(A)(1). The trial court imposed the maximum sentence
on each count; it ran the sentences for aggravated theft and one count of forgery
consecutively, but concurrently with the sentences in all the other counts, for an aggregate
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prison term of 15 years. Rigsbee was also fined and ordered to pay restitution.
{¶ 5} Rigsbee appealed, raising several issues related to her sentence. We
affirmed her conviction. Rigsbee, 174 Ohio App.3d 12, 2007-Ohio-6267, 880 N.E.2d 527.
{¶ 6} In May 2011, Rigsbee filed a motion to withdraw her plea, claiming that at
the time of the plea she had never seen the company’s forensic accounting audit and, to her
knowledge, neither had her attorney. She claimed that the amount of the theft, as
established by the audit, “did not match the amount of the checks deposited in [her] personal
account” and that “the two sets of checks were never reconciled.” Thus, she disputed the
accuracy of the amount she was accused of stealing. She claimed that she did not see the
checks she had allegedly drawn on the company’s accounts until August 2011, when she was
represented by different counsel, and that she would not have pled guilty if she had known
that her attorney at the time of her plea had not reviewed and reconciled the bank statements
and/or checks. She also claimed that she had not understood the nature of a plea to a bill of
information.
{¶ 7} The trial court overruled Rigsbee’s motion to withdraw her plea, stating
that she had failed to demonstrate a manifest injustice, that her “self-serving statements
[were] insufficient to overcome the strong record to the contrary,” and that Rigsbee’s delay
in filing her motion weighed against her credibility.
{¶ 8} Rigsbee appeals, arguing that the trial court erred in denying her motion to
withdraw her plea without a hearing, that she was denied the effective assistance of trial
counsel at the time of her plea, and that her plea was not knowingly, intelligently, and
voluntarily entered.
[Cite as State v. Rigsbee, 2013-Ohio-1239.]
{¶ 9} A Crim.R. 32.1 motion to withdraw a guilty plea after sentencing should be
granted only to correct a manifest injustice. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d
1324 (1977). A hearing on such a motion is required only if the facts alleged by the
defendant, if accepted as true, would require the plea to be withdrawn. State v. McComb,
2d Dist. Montgomery Nos. 22570, 22571, 2009-Ohio-295, ¶ 19. The motion is directed to
the sound discretion of the trial court, which assesses the good faith, credibility and weight
of the movant’s assertion in support of the motion. State v. Xie, 62 Ohio St.3d 521, 584
N.E.2d 715 (1992). The standard is designed to prevent a defendant from pleading guilty in
order to test the potential punishment, and then withdrawing the plea if the punishment is not
what he or she had hoped. Id., citing Kadwell v. United States, 315 F.2d 667, 670 (9th
Cir.1963). A trial court’s ruling on a motion to withdraw a guilty plea is reviewed for an
abuse of discretion. State v. Barnett, 73 Ohio St.3d 244, 596 N.E.2d 1101 (1991).
{¶ 10} We review alleged instances of ineffective assistance of trial counsel under
the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to
a strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland at 688. To establish ineffective assistance of counsel, it must be
demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness
and that her or his errors were serious enough to create a reasonable probability that, but for
the errors, the outcome of the case would have been different. Id.{¶ 11} Rigsbee claims that the amount stolen, based on the forensic audit, “did not
match the amounts of the checks deposited in [her] personal account.” She also asserts that
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she never saw the audit or the checks on which her employer relied, that “to her knowledge”
her attorney did not see them either, and that she “was never asked” to reconcile the “two
sets of checks.” Rigsbee claims that, if she had known that her attorney did not reconcile
the amounts, she would not have entered her plea, and that counsel’s failure to do so was
ineffective. Finally, she claims that she did not realize she was entering a plea, because she
pled to a bill of information.
{¶ 12} Although Rigsbee claims that the amount the bill of information alleged to
have been stolen was inaccurate, she does not state with any specificity how she arrived at
this conclusion. She states that she saw at least some of the “checks claimed to be
involved” in this case in August 2010, several months before her motion was filed, but her
affidavit did not identify any specific problem(s) with the checks she saw.
{¶ 13} Furthermore, Rigsbee’s assertion is refuted by the record. At the plea
hearing, Rigsbee’s attorney stated that he and Rigsbee had gone through the individual
checks and that she “acknowlege[d] all the figures and check numbers in [the bill of
information] are correct.” The bill of information listed the month, check number, amount,
bank, and date cleared for the checks at issue under each count of forgery; in all, over 200
forged transactions were documented in this manner under the forgery charges. Rigsbee’s
affidavit did not specifically allege or identify a single error in the amounts reflected by this
listing, nor has she disputed her attorney’s assertion at the hearing that they had reviewed the
“figures and check numbers” for accuracy, if not the check themselves. Similarly, the bill
of information listed the total amounts, per year, by bank, for the count of aggravated theft,
which Rigsbee did not specifically refute.
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{¶ 14} Rigsbee repeatedly refers to two sets of checks; one set is the checks she
wrote to herself on the company’s account, but the other set to which she refers is unclear.
She asserts that the amount of loss claimed by her employer did not match the checks
deposited into her account. But she also suggests that the checks written from the company
account should have matched her personal expenditures (personal checks); this does not
logically follow, since Rigsbee could have transferred money out of her account by means
other than personal check. Our prior opinion indicates that she cashed some of the checks,
which would have made it even harder to track the funds. Rigsbee failed to demonstrate,
other than through her self-serving statements, that the amount she actually stole differed
from the amount the bill of information alleged was stolen.
{¶ 15} Moreover, with respect to the aggravated theft, Rigsbee was found to have
stolen over $1.9 million. R.C. 2913.02(A)(2) and (B)(2) defined aggravated theft at that
time as theft of more than $1 million. Even if Rigsbee were correct in asserting that there
were some discrepancies in the amounts reflected in her records and the company’s records,
there is no evidence to suggest that such discrepancies totaled more than $900,000.
Likewise, Rigsbee was charged with six counts of forgery and one count of tampering with
records, but by the company’s estimate, she had completed 235 fraudulent transactions.
Assuming Rigsbee were able to raise specific, substantive questions about some of the
transactions – an assumption that is not supported by her affidavit – there is no basis to
conclude that she did not commit the charged forgeries and tampering with records. The
trial court did not abuse its discretion in concluding that Rigsbee’s allegations lacked
credibility or that the facts alleged in her motion did not require the plea to be withdrawn.
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{¶ 16} Rigsbee asserts that her attorney did not review the alleged amounts of the
thefts for accuracy, without offering any evidence in support of this assertion. The plea
transcript, on the other hand, contains a statement from the attorney that he and Rigsbee had
reviewed specific information, such as the date and amount, related to over 200 checks
(although it does not indicate the attorney had copies of the checks in hand). Based on this
evidence, and because of the assumption that trial counsel provided reasonable assistance,
the trial court was not required to conduct a hearing on Rigsbee’s unsupported claim that her
attorney failed to obtain or review the relevant documents.
{¶ 17} As for Rigsbee’s allegation that she did not know “that a Bill of
Information was a plea,” we note that more than four years passed between her plea and her
motion to withdraw the plea. The trial court did not abuse its discretion in concluding that
the delay in raising this argument weighed against its credibility. The trial court reasonably
concluded that, if Rigsbee had truly misunderstood the fundamental nature of the actions she
took when she entered her plea, for which she was sentenced to prison, she would have
raised that issue more quickly. Further, the transcript of the plea hearing demonstrates that
the trial court explained to Rigsbee a waiver of indictment, also referred to in the transcript
as a waiver of grand jury, and its effect, before she signed it. It was clear from this
discussion that, if Rigsbee signed the waiver, the bill of information would stand in the place
of an indictment. This discussion refutes Rigsbee’s suggestion that she did not understand
the effect of the bill of information.
{¶ 18} Because the facts alleged in Rigsbee’s motion and affidavit were
insufficient to justify the withdrawal of her plea, the trial court did not err in failing to
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conduct a hearing before it overruled the motion.
{¶ 19} As a final matter, we note that Rigsbee’s brief contains one short paragraph
in which she alleges that counsel was ineffective in failing to object to the aggregation of
several checks into each count of forgery, which “artificially raised” the degree of the
offenses. Appellate counsel states that he “found no authority” for charging the offenses in
this manner. According to the State, the parties agreed to handle the 235 forged checks in
this manner, with each count representing a different year, and Rigsbee would have faced a
more serious penalty if the parties had not aggregated the checks into six counts.
{¶ 20} We express no opinion as to the merits of Rigsbee’s argument related to the
aggregation of the forgery charges, although such an aggregation was arguably permissible
under R.C. 2913.61(C)(2) (“If an offender is being tried for the commission of a series of
violations of * * * section 2913.02, * * * or section 2913.31 * * * of the Revised Code, * * *
pursuant to a scheme or course of conduct, all of those offenses may be tried as a single
offense.”). Regardless, this argument was not properly raised in a motion to withdraw a
plea. Rigsbee took a direct appeal from her conviction, in which she raised four
assignments related to her sentence. Any argument about alleged error in how the offenses
were charged or about ineffective assistance of trial counsel should have been raised at that
time or in a motion for post-conviction relief. It was not properly raised in a motion to
withdraw a plea, because the trial court lacked the authority to modify its judgment or
sentence when this motion was filed. Moreover, Rigsbee does not allege that the error, if
any, affected her willingness to enter a plea.
{¶ 21} The assignment of error is overruled.
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{¶ 22} The judgment of the trial court will be affirmed.
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FAIN, P.J. and HALL, J., concur.
Copies mailed to:
Kevin S. Talebi
George A. Katchmer
Hon. Nick A. Selvaggio