Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-433325
ATTORNEYS FOR APPELLANT Barry W.Wilford Sarah M. Schregardus Kuras, Wilford & Schregardus Co., L.P.A.
ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Mary H. McGrath Saleh S. Awadallah Assistant County Prosecutors.
BEFORE: Stewart, A.J., Jones, J., and EA. Gallagher, J.
JOURNAL ENTRY AND OPINION
MELODY J. STEWART, A.J.
(¶1} In 2003, defendant-appellant Daniel Montgomery,  who was assigned to work at St. Stanislaus Church in Cleveland, confessed to murdering the church's pastor, Reverend William Gulas, and setting fire to the parish rectory in order to cover up the murder. To avoid a possible death penalty, he pleaded guilty to murder and arson. He now seeks to withdraw that plea, claiming that he entered the plea under duress and unaware that his attorney knew of the existence of exculpatory evidence. When one of his trial attorneys filed an affidavit contradicting the claim that counsel failed to inform Montgomery about potential exculpatory evidence, Montgomery asked the court to strike the affidavit on grounds that it divulged privileged attorney-client communications. The court denied the motion to strike and then denied the motion to withdraw the guilty plea on grounds that most of the claims raised were res judicata because they could have been raised in earlier proceedings.
(¶2} We find that the court correctly refused to strike the affidavit, but for different reasons than those given by the court — by raising an ineffective assistance of counsel claim in postconviction proceedings, Montgomery waived the attorney-client privilege. We also agree with the court that issues raised in the motion to withdraw the guilty plea, even those that claimed actual innocence, could have been raised in earlier proceedings and were res judicata. We thus affirm the court's refusal to permit Montgomery to withdraw his guilty plea.
(¶3} Montgomery was assigned to St. Stanislaus as a tutor in the church school. In December 2002, he received a 12:30 p.m. telephone call from a parishioner and went to the pastor's office to get a telephone number. As he entered the office, he saw smoke and flames. He went back to his room and told the caller that he did not know the number. He then called 911 to report a fire. Montgomery remained on the scene to console parishioners and pray for the safety of the pastor, who could not be located. As firefighters put out the fire, they discovered the pastor's body in the rectory office.
(¶4} The day after the fire, the police questioned Montgomery as part of an arson investigation. That questioning did not go well. The police found it odd that Montgomery was unable to say what he had been doing in the 15 minutes before he discovered the fire. He recalled with clarity events outside that frame of time on the day of the fire, but claimed to have no memory of his activities immediately before he entered the church office. As the questioning continued, the police were informed that the coroner had determined that the pastor did not die as a result of the fire, but had instead died from a gunshot wound to the neck.
(¶5} Now that they were investigating a murder, the police accused Montgomery of being less than truthful with his responses regarding his whereabouts before he reported the fire. Montgomery put his head down and said that he needed help. The police asked him if he owned a gun, and Montgomery began searching his wallet to show the police a receipt for a gun. There was no receipt. The police again told Montgomery that he was not being truthful about his activities in the 15 minutes before he claimed to have discovered the fire. Montgomery again put his head down and said that he needed help.
(¶6} Montgomery told the police that his career as a Franciscan was unraveling. He had been accused by some students of inappropriately touching them, been banned from the church school, and was being transferred to an Indiana friary where he would work in a home for retired Franciscan clergy. "Sad and angry" over these orders, he wanted to "hurt someone." On the day before the fire, he said he went to a local convenience store that supposedly maintained a drug trade and purchased a loaded handgun from the clerk at the counter.
(¶7} The following day, at 12:15 p.m., Montgomery took his gun to the pastor's office. The pastor was sitting at his desk. Montgomery told the pastor, "I can't fucking take this anymore" and fired a single shot. He claimed to see blood streaming down the pastor's chest. Montgomery dropped the gun, found a lighter, and set fire to some papers in the office. He then returned to his room and fell asleep, only to be awakened by the parishioner's telephone call. The caller requested a telephone number that the pastor would know, so Montgomery went to the pastor's office and discovered the fire. He then called 911 to report the fire.
(¶8} The state charged Montgomery with felony murder and aggravated arson. In October 2003, he pleaded guilty to murder and arson with an agreed sentence of life with parole eligibility after a minimum of 24 years.
(¶9} In December 2003, Montgomery filed a delayed appeal. Appellate counsel certified that there was no merit to the appeal and, under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), filed a motion to voluntarily dismiss the appeal. We granted the motion and dismissed the appeal.
(¶10} In October 2004, Montgomery filed a pro se motion for DNA testing of the bullet recovered from the pastor's body. He claimed that his DNA would not be on the bullet, so "it would be impossible for me to have used a firearm to shoot the victim." He further argued that if he did not shoot the victim, "I would not have set the fire, making me innocent of aggravated arson." The state opposed DNA testing under former R.C. 2953.82(D), which at that time stated that the prosecuting attorney's disagreement with an inmate's request for DNA testing was "final and is not appealable by any person to any court[.]" The court did not rule on this motion.
(¶11} In November 2006, Montgomery filed a petition for postconviction relief and a motion for resentencing. Both motions sought resentencing on grounds that the court imposed more than the minimum sentence and imposed consecutive sentences in violation of the United States Supreme Court decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which held that any sentence beyond the statutory minimum that required judicial finding of facts not proven to a jury beyond a reasonable doubt or admitted by the defendant was unconstitutional. The state opposed the petition on grounds that Montgomery pleaded guilty to an agreed sentence and that Blakely could not be applied retroactively.
(¶12} At the same time he filed his petition for postconviction relief, Montgomery filed an application to reopen his direct appeal, asserting that appellate counsel was ineffective for failing to raise sentencing issues relating to his receiving more than the minimum prison term and consecutive sentences. We treated the application as a motion to reconsider the dismissal of the prior appeal and granted the motion. We then held, consistent with other appellate districts, that Montgomery's agreed sentences foreclosed appellate review concerning the length of his sentence. See State v. Montgomery, 8th Dist. Cuyahoga No. 83914, 2008-Ohio-443, ¶ 6. We also rejected a claim that trial counsel was ineffective for allowing Montgomery to accept a plea bargain to more than the minimum term and to consecutive sentences. Id. at ¶ 17.
(¶13} In July 2011, Montgomery filed a motion to withdraw his guilty plea. Recanting his confession, he argued his actual innocence. He also argued that the state withheld exculpatory evidence, the existence of which would have proven his innocence. Finally, Montgomery argued that trial counsel failed to investigate the evidence and ignored his desire to retract his plea and go to trial.
(¶14} The motion to withdraw the guilty plea cited seven different "problems" with the state's case: (1) the murder weapon was not found and Montgomery's story about how he purchased the gun was refuted by the store owner who denied employing anyone matching the description of the clerk who allegedly sold Montgomery the gun; (2) there was evidence that a church lock box used to store bingo receipts had been opened and burned currency was found at the scene of the fire, thus suggesting that the pastor had been robbed, even though the police had no evidence that Montgomery committed this robbery; (3) the state failed to divulge evidence that the pastor's cell phone was later found in the possession of someone from outside the church, suggesting that the pastor's cell phone had been taken by the robber; (4) the coroner found evidence of blunt trauma to the pastor's head, suggesting that he had struggled with the murderer; (5) the police disregarded evidence that a church employee may have been present at the church at the time of the murder and that this person had financial difficulties that provided a motive for committing a robbery; (6) there was no gunshot residue on Montgomery's clothing consistent with his having fired a gun; and (7) Montgomery's interrogation was "a model of unreliability."
(¶15} The state opposed the motion to withdraw the guilty plea on grounds that Montgomery had grossly distorted the facts; that his claims could have been raised on direct appeal; and that he failed to establish the existence of a manifest injustice sufficient to permit the court to allow him to withdraw the plea. To support its argument that Montgomery failed to show a manifest injustice in the state's failure to disclose exculpatory evidence, the state appended an affidavit from one of Montgomery's trial attorneys. That attorney stated that he received full discovery on all of the "problems" raised in the motion to withdraw the guilty plea and that he shared that discovery with Montgomery.
(¶16} Montgomery filed a motion to strike his trial attorney's affidavit on grounds that it violated R.C. 2317.02(A), that prohibits an attorney from testifying concerning a communication made to the attorney by a client or the attorney's advice to a client. The state opposed the motion by arguing that the affidavit did not contain any communications by Montgomery to trial counsel and that Montgomery had, in any event, waived the attorney-client privilege by raising a postconviction ineffective assistance of counsel claim. The court denied the motion to strike the affidavit because it found that the affidavit did not reveal any communications between Montgomery and trial counsel.
(¶17} The court denied the motion to withdraw the guilty plea finding it was barred by res judicata. The court held that "[e]ach claim raised in Montgomery's conclusions as stated in his Corrected Motion to Withdraw Guilty Plea were facts in existence and known to Montgomery at the time of his plea, sentencing, and subsequent direct appeal and petition for postconviction relief." The court also found no basis for concluding that the state withheld exculpatory evidence of cell phone records, noting that "Montgomery does not dispute that the records were, in fact, provided to defense counsel." Finally, it found that claims of ineffective assistance of counsel relating to the guilty plea and Montgomery's fabricated confession could have been raised on direct appeal, so they were res judicata.
(¶18} The first assignment of error is that the court abused its discretion by denying Montgomery's motion to strike the affidavit of his trial attorney. Montgomery argues that the attorney's statement that he had received and reviewed prior to the plea proceedings all of the evidence described in Montgomery's motion to withdraw his guilty plea violated the attorney-client privilege set forth in R.C. 2317.02(A).
(¶19} Montgomery claimed his decision to plead guilty resulted from (1) the state's failure to disclose favorable evidence to the defense and (2) his attorneys' failure to investigate both the case and his mental condition that caused him to falsely confess to the murder. Corrected Motion to Withdraw Guilty Plea at 13. The specific claims relating to trial counsel's performance were that they had a duty to investigate the case and that, had they done so, they would have learned of the fabricated details relating to Montgomery's purchase of the gun. Trial counsel would also have learned that the pastor's cell phone had turned up in the hands of someone unaffiliated with the church. Montgomery reasoned that the missing cell phone, viewed in conjunction with the opened lockbox, created the inference that the pastor had been murdered during a robbery. Finally, Montgomery argued that had trial counsel investigated these leads, they would have taken more seriously Montgomery's claims of actual innocence and investigated his mental state when confessing to the murder.
(¶20} The trial attorney's affidavit stated in relevant part:
3. Affiant avers that during the pre-trial discovery process, he and co-counsel received supplemental discovery from the State that included thirteen pages of Sprint cell phone records. Affiant knew that the cell phone records were those of the victim's cell phone and that the victim's cell phone was on and receiving calls after the victim's death. Additionally, Affiant knew that the person in possession of the victim's cell phone was a neighborhood resident.
4. Affiant avers that he knew the details of the Cleveland Police investigation into the victim's murder, including the investigation into Montgomery's explanation that he purchased the firearm used to murder the victim from a male employee of a local market. Affiant knew that Cleveland Police detectives interviewed the store owner of the market, and that owner denied having an employee matching the description provided by Montgomery. Affiant also knew that the murder weapon was never found.
5. Affiant avers that during the pre-trial discovery, he and co-counsel received discovery from the State that included notice of burnt money being found outside of a strongbox in the fire scene.
6. Affiant avers that the above-stated information was discussed with Montgomery prior to the ...