State v. Downey , 2020 Ohio 4118 ( 2020 )

[Cite as State v. Downey, 2020-Ohio-4118.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case Nos 19 CA 29, 19 CA 36 and
LORI DOWNEY 20 CA 03
Defendant-Appellant
OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 18 CR 72
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 18, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVE YOST ADAM G. BURKE
OHIO ATTORNEY GENERAL BURKE, MEIS & ASSOCIATES LLC
BRAD L. TAMMARO 625 City Park Avenue
ASSISTANT ATTORNEY GENERAL Columbus, Ohio 43206
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 2
Wise, John, J.
{¶1} Appellant Lori Downey appeals the Fairfield County Common Pleas Court’s
denial of Appellant’s Motion to Withdraw Guilty plea for Complicity to Theft, Identity Fraud,
and Forgery. Appellee is the State of Ohio. The relevant facts leading to this appeal are
as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Downey was originally indicted in September of 2014 on two
charges, Grand Theft of an Elderly Person and a single charge of Forgery. The Ohio
Attorney General’s Office was later appointed as Special Prosecutor, and the case was
dismissed to complete a detailed financial investigation.
{¶3} As a result of newly discovered evidence from the Attorney General’s
investigation, Appellant was indicted February 22, 2018 on thirty-two charges that
included Engaging in a Pattern of Corrupt Activity, Complicity to Theft,
Telecommunications Fraud, Identity Fraud, and Forgery.
{¶4} Appellant was represented by counsel. Under a plea agreement, Appellant
plead guilty on April 9, 2019, to one count of Complicity to Theft, one count of Identity
Fraud, and one count of Forgery, in exchange for the State dismissing the remaining
twenty-nine counts of the indictment.
{¶5} The trial court sentenced Appellant on June 24, 2019 to a prison term of
three years. On June 27, 2019, the trial court filed the sentence. On that same day,
Appellant filed a Notice of Substitution of Counsel, a Motion to Continue Report Date, and
a Motion to Withdraw Guilty Plea. The court denied the motion to Continue Report Date
on June 27, 2019.
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 3
{¶6} On July 1, 2019, Appellant filed her first Notice of Appeal, along with a
Motion to Stay Execution of Sentence Pending Appeal. Then, on July 12, 2019, the trial
court denied Appellant’s Motion to Withdraw Guilty Plea. Appellant filed a second Notice
of Appeal on August 12, 2019.
{¶7} On September 23, 2019, with the appeal already pending, Appellant filed a
Supplemental Motion to Withdraw Guilty Plea with the trial court. On November 26, 2019,
this Court remanded the case back to the trial court. The next day, November 27, 2019,
the trial court filed a Notice that the Court of Appeals had remanded the case back to the
trial court to rule on Appellant’s Supplemental Motion by December 22, 2019. The State
received this Notice on December 4, 2019, and filed a Memo Contra Defendant’s
Supplemental Motion to Withdraw Guilty Plea on December 11, 2019.
{¶8} Appellant filed Defendant’s Motion to Withdraw and Motion to Strike the
State’s Reply. On December 18, 2019, the trial court journalized its Entry denying Ms.
Downey’s Motion to Withdraw and Motion to Strike the State’s Reply.
{¶9} On January 14, 2020, Appellant filed a third notice of appeal. The Court
granted Ms. Downey’s motion and consolidated all three appeals on January 31, 2020.
She herein raises the following three Assignments of Error:
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT ERRED IN FAILING TO STRIKE THE STATE-
APPELLEE’S 91-PAGE (INCLUDING EXHIBITS AND ELECTRONIC-CD FILES) REPLY
DELIVERED TO APPELLANT’S COUNSEL ON THE EVE OF THE TRIAL COURT’S
DECISION ON THE APPELLANT’S MOTION TO WITHDRAW HER GUILTY PLEA.
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 4
{¶11} “II. IN SIGNING A SPEEDY TRIAL WAIVER WITHOUT ADVISING
APPELLANT OF THE SPEEDY TRIAL ATTRITION OCCASIONED BY THE PAST
CASES ARISING FROM THE SAME CIRCUMSTANCES, LORI DOWNEY’S DEFENSE
COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE.
{¶12} “III. IN FAILING TO RAISE THE PREJUDICE TO HER DUE PROCESS
RIGHTS OCCASIONED BY THE STATE’S THREE SEPARATE DISCONTINUOUS AND
DELAYED CRIMINAL CASES AGAINST HER OVER THE COURSE OF SEVEN YEARS
ALL FOR THE SAME ALLEGED 2012 CONDUCT, LORI DOWNEY’S DEFENSE
COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE.”
I.
{¶13} In her first assignment of error, Appellant argues the trial court erred by
failing to grant Appellant’s Motion to Strike the State’s Memo Contra Defendant’s
Supplemental Motion to Withdraw Guilty Plea. We disagree.
{¶14} A trial court is granted discretion in permitting a party to file a pleading
outside of the time guidelines set forth in the rules. Hopkins v. Dyer, 5th Dist. Tuscarawas
No. 2001AP080087, 2002-Ohio-1576. A ruling by the trial court on a motion made after
the expiration of a specified time period will be reviewed under an abuse of discretion
standard. Id. Under such a standard, the appellate court must determine if the trial court’s
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. State v. Minor, 5th Dist. Muskingum No. CT2014-0027, 2014-Ohio-4660, ¶7.
{¶15} Appellant argues that the State had 14 days to respond to Defendant’s
Supplemental Motion under Civ.R. 6(C)(1), noting that the Court should look to the rules
of civil procedure if no rule of criminal procedure exists. Civ.R. 6(C)(1). Crim.R. 57(B).
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 5
Appellee does not dispute this but points out that the trial court lacked jurisdiction at the
time Appellant filed Supplemental Motion. “It is a well-recognized principle that once an
appeal has been perfected, the trial court loses jurisdiction over the matter, pending the
outcome of the appeal.” Ritchey v. Plunkett, 5th Dist. Stark No. 2013 CA 00105, 2013-
Ohio-5695, ¶15.
{¶16} Appellant filed the Supplemental Motion with the trial court on September
23, 2019. However, Appellant had previously filed a Notice of Appeal on July 1, 2019,
removing jurisdiction from the trial court. On November 27, 2019, the trial court filed a
notice that this Court remanded the case back to the trial court, and fourteen days later,
on December 11, 2019, the State filed a Memo Contra Defendant’s Supplemental Motion
to Withdraw Guilty Plea. As the State’s Memo Contra falls within the time frame of Civ.R.
6(C)(1), the trial court did not abuse its discretion in failing to grant Appellant’s Motion to
Strike the State’s Memo Contra Defendant’s Supplemental Motion to Withdraw Guilty
Plea.
{¶17} Appellants’ First Assignment of Error is overruled.
II.
{¶18} In her second assignment of error, Appellant argues her trial counsel was
ineffective by signing a Speedy Trial Waiver when, by the Appellant’s count, the State
had thirty-eight days remaining to prosecute the indictment. We disagree.
{¶19} A claim of ineffective assistance of counsel requires a two-prong analysis.
State v. Remillard, 5th Dist. Knox No. 18CA16, 2019-Ohio-3545, ¶33. The first inquiry is
whether counsel’s performance fell below an objective standard of reasonable
representation involving a substantial violation of any defense counsel’s essential duties
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 6
to Appellant. Id. The second prong is whether Appellant was prejudiced by counsel’s
ineffectiveness. Id. Counsel may choose to not pursue a defense where it probably would
not succeed or is not valid. Id.
a. Determination on Motion to Withdraw Guilty Plea
was Filed before or after sentence was pronounced
{¶20} To show counsel’s performance fell below an objective standard of
reasonable representation Appellant argues the trial counsel should have objected to the
trial court’s denial of Appellant’s Motion to Withdraw Guilty Plea on the grounds that no
hearing was held on the motion. The trial court must conduct a hearing on a presentence
motion to withdraw a guilty plea to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea.” State v. Xie, 62 Ohio St. 3d 521, 527, 584 N.E.2d
715, 719 (1992). However, a motion made after the pronouncement of sentence but
before the trial court’s filing of the sentencing entry is to be treated as a post-sentence
motion. State v. Surface, 5th Dist. Stark No. 2008 CA 00184, 2009-Ohio-950, ¶12.
{¶21} In Surface, defendant plead guilty of two counts of rape, and one count of
gross sexual imposition on June 16, 2008. Id. On the same day the trial court sentenced
defendant to life in prison with the possibility of parole in ten years. Id. Defendant then
sent a letter to the trial court dated June 16, 2008, notifying the court of his desire to
withdraw his guilty plea. Id. The letter was filed on June 23, 2008. Id. The trial court’s
Judgment Entry sentencing the defendant was filed on July 30, 2008. Id. This court
recognizing that the sentence had not yet been journalized, held the appellant’s request
came after pronouncement of the sentence. Id. Therefore, the standard to grant a motion
to withdraw guilty plea is only to correct a manifest injustice. Id.
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 7
{¶22} Appellant argues that her Motion to Withdraw Guilty Plea occurred prior to
sentencing. Appellant argues sentencing took place on June 27, 2019, when the trial court
journalized its sentence against Ms. Downey. However, the actual sentencing hearing
took place on June 24, 2020, the date the trial court pronounced the sentence. Therefore,
Appellant’s Motion to Withdraw Guilty Plea occurred after the trial court’s pronouncement
of sentence, but before the trial court’s filing of the sentence. Therefore, this is not a pre-
sentence Motion to Withdraw Guilty Plea, and a hearing on Appellant’s Motion to
Withdraw Guilty Plea is not required.
b. Determination on Appellant’s right to a hearing
On her post-sentence Motion to Withdraw Guilty Plea.
{¶23} Appellant also argues that a Crim.R. 32.1 also requires a post-sentence
hearing.
{¶24} Crim.R. 32.1 states:
A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after
sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.
{¶25} Though Crim.R. 32.1 does not expressly require an evidentiary hearing, a
hearing is only required if the facts alleged in the motion are accepted as true by the trial
court, and those facts would require that the plea be withdrawn. State v. Smith, 1st Dist.
Hamilton No. C-180081, 2019-Ohio-3642. In Smith, the defendant as well his attorney
submitted affidavits demonstrating, because of defendant’s counsel’s drug addiction, he
was incapable as functioning as counsel under the Sixth Amendment. Id.
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 8
{¶26} The court may also decide the motion in a paper hearing if the affidavit
testimony is deemed to lack credibility. Id. The trial court should consider all relevant
factors in assessing the credibility of the affidavits including:
(1) Whether the judge reviewing the post-conviction relief petition
also presided at the trial, (2) whether multiple affidavits contain nearly
identical language, or otherwise appear to have been drafted by the same
person, (3) whether the affidavits contain or rely on hearsay, (4) whether
the affidavits are relatives of the petitioner, or otherwise interested in the
success of the petitioner’s efforts, and (5) whether the affidavits contradict
evidence proffered by the defense at trial. Moreover, a trial court may find
sworn testimony in an affidavit to be contradicted by evidence in the record
by the same witness, or to be internally inconsistent, thereby weakening the
credibility of that testimony. State v. Calhoun, 86 Ohio St. 3d 279, 1999-
Ohio-102, 714 N.E.2d 905.
{¶27} A trial court finding one or more of these factors may be sufficient that an
affidavit asserting information outside the record lacks credibility. Id. The decision whether
or not to hold a hearing is discretionary and may be reversed on appeal only if the court
abused its discretion. Smith at ¶34.
{¶28} Here, the trial court noted several factors when assessing the credibility of
Appellant’s affidavits. The judge presiding over the motion was assigned to the original
case in February of 2015. Also, the Affidavits were provided only by Appellant and her
husband, who had been identified as participating in some of the crimes charged. The
trial court made it clear that they carefully examined the facts in the Affidavits and
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 9
determined they contained “self-serving versions of speculative or newly created facts in
the case” causing the Affidavits to lack the credibility necessary to establish a substantive
claim for relief. We find the trial court did not abuse its discretion with the denial of
Appellant’s Motion to Withdraw Guilty Plea without holding a hearing.
c. Determination on Appellant’s Claim of Ineffective
Assistance of Counsel Rendering her Plea not Knowing,
Intelligent and Voluntarily Entered, and Appellant’s Speedy
Trial Elapsed Due to an Ineffective Speedy Trial Waiver.
{¶29} Subsections three and four of Appellants Second Assignment of Error will
be analyzed together under the same set of facts.
{¶30} Appellant further argues the trial court erred in failing to grant the Motion to
Withdraw Guilty Plea as her plea was not knowingly, intelligent and voluntary due to
ineffective assistance of counsel, and also because of this ineffective assistance of
counsel, the Speedy Trial Waiver was ineffective.
{¶31} Appellant bears the burden of demonstrating her trial counsel made errors
so serious “that counsel was not functioning as the counsel guaranteed the defendant by
the Sixth Amendment.” Xie at 524. Appellant also must show that the counsel’s errors
were so serious as to deprive the defendant of a fair trial. Id. In Xie, defendant argued his
counsel did not raise his awareness that he would not be eligible for parole in a minimum
of seventeen years he would have never entered the guilty plea. Id. The trial court
considered this contention and was not convinced that the misinformation justified
vacating the plea. Id. at 525. Judicial scrutiny of counsel’s performance must be highly
deferential as there are many ways to provide effective assistance. State v. Bradley, 42
Ohio St. 3d 136, 538 N.E.2d 373 (1989).
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 10
{¶32} In the case sub judice, Appellant argues that she would never have agreed
to filing the Waiver of Speedy Trial on March 28, 2018 if she knew the trial would have to
begin in thirty-eight days. This speculation by Appellant assumes that Appellant and her
counsel were prepared to go to trial in thirty-eight days. This assumption is contradicted
by Appellant, when on August 16, 2018, nearly five months after the Waiver for Speedy
Trial, she filed a Motion to Continue in order to further prepare for trial and consult a
forensic accountant.
{¶33} Counsel’s decision not to challenge the trial court’s ruling on the Motion to
Withdraw Guilty Plea is reasonable as it was unlikely to succeed. Waiving Appellant’s
right to a speedy trial is a legitimate strategy. Therefore, Appellant’s argument is
unpersuasive and does not show counsel’s performance fell below an objective standard
of reasonable representation.
{¶34} Appellants’ Second Assignment of Error is overruled.
III.
{¶35} Appellant argues, in failing to raise the prejudice to her Due Process rights
caused by the State’s discontinuous and delayed criminal cases against her over the
course of seven years all for the same alleged 2012 conduct, Appellant’s defense counsel
was constitutionally ineffective. We disagree.
{¶36} The same two-prong analysis for establishing ineffective assistance of
counsel discussed in the Second Assignment of Error is applicable to the Third
Assignment of Error: whether counsel’s performance fell below an objective standard of
reasonable representation, and whether Appellant was prejudiced by counsel’s
ineffectiveness. Remillard, at ¶33.
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 11
{¶37} “The Due Process Clause of the Fifth Amendment, and Article I, Section 16
of the Ohio Constitution provide limited protection against preindictment delay. State v.
Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶97. A defendant alleging
a due-process violation based on preindictment delay must provide evidence of
substantial prejudice to his right to a fair trial. Id. at ¶98. This burden is nearly
insurmountable because proof of prejudice is always speculative. Id. at 100. Mere
speculation, the possibility of faded memories, inaccessible witnesses, and lost evidence
is insufficient to demonstrate actual prejudice. State v. Jones, 148 Ohio St. 3d 167, 2016-
Ohio-5105, 69 N.E.3d 688, ¶27.
{¶38} In Adams, a witness died during the preindictment period, and the Supreme
Court determined the defendant failed to demonstrate substantial prejudice. Adams at
101. The Supreme Court further held, “the defendant had to identify exculpatory evidence
that was lost and show that the exculpatory evidence could not be obtained by other
means.” Adams at 103.
{¶39} In the present case, Appellant contends her case was first prejudiced by the
preindictment delay as text messages and call logs between the victim, victim’s son, and
Appellant could not be obtained by the phone company. Appellant argues these
messages and call logs would have shown the victim gave Appellant authorization to
undertake most, if not all, of the expenditures Appellant made. However, the phone
service provider only retains these records for a year. Whereas these may show
exculpatory evidence, Appellant could present such evidence to the court by way of the
victim’s testimony. As such, Appellant has not shown the exculpatory evidence could not
be obtained by other means.
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 12
{¶40} Appellant further argues that witness testimony was lost as they could not
find the New Accounts Manager at the bank who opened up a joint account for the victim.
Appellant also could not find a car salesman from whom she purchased a car. Appellant
contends these witnesses would testify that the victim seemed to understand how joint
accounts worked, and that the victim was a willing participant in the car sale, respectively.
Neither witness would be able to actually testify to the victim’s understanding of these
events; however, the victim, could provide testimony to whether or not she understood
these processes. As such, Appellant did not show that the exculpatory evidence was lost
and that it could not be obtained by other means.
{¶41} Finally, Appellant argues that she suffered multiple mini strokes leading up
to the indictment which hampered her ability to remember specific details. However,
Appellant makes no reference to the specifics of what these details would have shown,
nor does she state that the victim could not have testified to the transactions in question.
As such, Appellant did not show that exculpatory evidence was lost and that it could not
be obtained by other means.
{¶42} It would be reasonable for counsel to conclude that pursuit of Appellant’s
rights being prejudiced by preindictment delay would not succeed. As Appellant’s counsel
acted in such a manner, then Appellant failed to show counsel acted in a manner which
was not objectively reasonable.
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 13
{¶43} Appellants’ Third Assignment of Error is overruled.
{¶44} For the foregoing reasons, the judgment of the Common Pleas Court of
Fairfield County, Ohio, is hereby affirmed.
By: Wise, John, J.
Baldwin, J., concurs.
Hoffman, P. J., concurs separately.
JWW/br
Fairfield County, Case Nos. 19 CA 29, 19 CA 36 and 20 CA 03 14
Hoffman, P.J., concurring
{¶45} I concur in the majority’s analysis and disposition of Appellant’s first and
third assignments of error. I further concur in the majority’s analysis and disposition
of Appellant’s second assignment of error with the singular exception of its analysis
regarding the waiver of her speedy trial right.
{¶46} Unlike the majority, I do not find the fact Appellant’s motion to continue the
trial on August 16, 2018, contradicts her argument. While her motion to continue would
be a tolling event under the speedy trial statute, it was made long after the speedy
trial limit would have expired [approximately May 5, 2018] had time not been waived.
{¶47} I believe the majority’s focus is misplaced. The state must bring a defendant
to trial within the speedy trial time limit, as adjusted by any applicable tolling events.
Whether the defendant is ready to proceed, or not, at that time does not relieve the state
of its obligation to timely proceed.
{¶48} Appellant’s argument focuses on whether Appellee would have been
prepared to go to trial in 38 days, not whether she was ready to proceed. Appellant’s
assumption the state would not be ready to proceed within 38 days is merely that,
an assumption. It is speculative at best. Therefore, I concur in the majority’s decision
to overrule this portion of Appellant’s second assignment of error.