from the Franklin County Court of Common Pleas C.P.C. No.
O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
brief: Jeremy M. Dodgion, for appellant.
1} Defendant-appellant, Lowell W. Ludwick, appeals a
March 22, 2017 judgment of the Franklin County Court of
Common Pleas sentencing him to eight years in prison for
conspiring to have his wife murdered. Because we find that
the evidence at trial was overwhelmingly in favor of guilt
and that the evidence would not have supported a defense of
abandonment, we find that Ludwick's defense counsel was
not ineffective for failing to raise abandonment, and that
Ludwick's conviction was both sufficiently supported by
and not against the manifest weight of the evidence. Because
the record is insufficient to conclude that defense counsel
failed to investigate Ludwick's apparent gambling
addiction, we also cannot conclude that defense counsel was
ineffective in failing to sufficiently investigate and
present mitigation evidence at sentencing. We overrule all of
Ludwick's assignments of error and affirm the judgment of
the trial court.
FACTS AND PROCEDURAL HISTORY
2} On April 28, 2016, a Franklin County Grand Jury
indicted Ludwick for one count of conspiracy in connection
with a plot to hire someone to murder his wife. (Apr. 28,
2016 Indictment at 1-2.) A trial began in the case with jury
selection on February 6, 2017. (Tr. Vol. I at 5, filed on May
15, 2017.) The three witnesses who testified during the trial
were the detective who investigated the case, the person who
reported Ludwick's attempt to hire a hit man to kill his
wife, and Ludwick's wife.
3} The detective testified first. He explained that
on March 7, 2016, someone named Wade Smith called the police
department to report a possible murder for hire. (Tr. Vol. I
at 66-67.) The detective met with Smith the next day on March
8. (Tr. Vol. I at 68-69.) Smith told the detective that
Ludwick (whom he knew professionally through his work as an
HVAC salesman) had contacted him on March 7 and the two had
met for coffee. (Tr. Vol. I at 69-71.) Initially, Smith had
assumed that the discussion over coffee would be about HVAC
business, but once he got to the coffee shop he stated that
Ludwick turned off both his phone and Smith's phone and
placed them on an adjacent table. Id. Then Ludwick
confided to Smith that he was looking to hire someone to kill
his wife. Id.
4} During the March 8 meeting between the detective
and Smith, the detective helped Smith make a controlled
telephone call to Ludwick to set up another meeting to
discuss the matter further. (Tr. Vol. I at 75-76.) On the day
of Smith's second meeting with Ludwick, March 10, 2016,
the detective provided Smith with an audio and video
recording device disguised as an automobile key fob. (Tr.
Vol. I at 76-77; State's Ex. B5.) The detective also set
up surveillance on the coffee shop and took pictures of Smith
and Ludwick as they arrived and during the meeting. (Tr. Vol.
I at 77-79, 87-88; State's Exs. A1-A36.) The detective
explained that the two men met for a short period in the
coffee shop before changing venue to Ludwick's truck.
(Tr. Vol. I at 81-82.)
5} After the March 10 meeting with Ludwick, Smith
met again with police, returned the key fob recording device,
and also provided the police with a piece of paper on which
Smith had written an address Ludwick had given him "503
Woodland Ct. - West Jeff. - 43162, " which was Ludwick
and his wife's home address. (Tr. Vol. I at 83, 85-87;
State's Exs. B5, C, D.) After downloading and listening
to the contents of the recording device Smith returned to
him, the detective contacted the prosecutor's office.
(Tr. Vol. I at 83-84.) The following day, March 11, 2016, the
police contacted Ludwick's wife to warn her about what
they had learned and to protect her against the possibility
that Ludwick might have contacted persons other than Smith
and successfully hired someone to kill her. (Tr. Vol. I at
6} Smith testified next. He confirmed that he knew
Ludwick through HVAC business and received an invitation to
have coffee in March 2016. (Tr. Vol. I at 107-10.) When he
arrived, Ludwick said something to the effect of "let me
see your phone." (Tr. Vol. I at 110-12.) When Smith
handed it over, Ludwick shut off both his own phone and
Smith's phone and placed them on a table six to eight
feet away. Id. Then he said he wanted his wife gone
and did not care how it happened. (Tr. Vol. I at 112-14.) He
related that he had considered staging an accident by pushing
her down the stairs with her vacuum cleaner. Id. He
initially offered Smith $20, 000 to do it or have someone
else do it, but eventually "sweeten[ed]" the deal
to $30, 000 when Smith seemed reluctant. (Tr. Vol. I at
114-15.) Ludwick told him that his wife was home alone every
other Friday and wanted to be sure that he knew the exact
date and time that it would happen so he could be sure to
have an alibi. (Tr. Vol. I at 115-16.)
7} Smith testified that initially his thought was to
forget about the conversation and never talk to Ludwick
again. (Tr. Vol. I at 116-17.) But after he discussed it with
some friends he was advised by them to contact the police; he
got in touch with the detective and agreed to meet with the
police on March 8, 2016. (Tr. Vol. I at 117-20.) Smith
testified that while meeting with the police he called
Ludwick and set up another meeting. (Tr. Vol. I at 119-20.)
Smith confirmed that he agreed to carry a video and audio
recorder shaped like a key fob and did successfully carry the
device throughout his second meeting with Ludwick which was
held on March 10. (Tr. Vol. I at 121-23.)
8} Smith testified that at the March 10 meeting,
after making small talk and business talk in the coffee shop
for a few minutes, he and Ludwick got into Ludwick's
truck. (Tr. Vol. I at 122-23.) Once in the truck, each man
turned off his cell phone and placed them on the dash. (Tr.
Vol. I at 123-24.) Then they drove around talking for what
Smith estimated was 45 minutes to one hour. (Tr. Vol. I at
9} The parties stipulated the relevancy of certain
portions of the recorded conversation and those portions were
played for the jury. (Tr. Vol. I at 138-39, 141-47;
State's Ex. D 13:28:00-14:22:48.) Once the two men were
in the truck, the recording indicates that Ludwick led off
the conversation by asking Smith if he was currently, or had
ever been, associated with law enforcement. (State's Ex.
D at 13:35:31-13:35:42.) Ludwick stated that "this [wa]s
some pretty serious shit." Id. at
13:35:33-13:35:50. Ludwick then asked if Smith had an
"answer or solution or could help or something."
Id. at 13:35:54-13:36:01. Smith said he had a guy
who could help, but he cautioned Ludwick, "[h]e scares
the fuck outta me, Wayne [Ludwick]. They don't call him
Crazy Joe for nothin." Id. at
13:36:01-13:36:07. Ludwick responded, "Good."
Id. at 13:36:05-13:36:07. At that point, Smith laid
out what "Crazy Joe" was seeking-a down payment, a
picture, and an address. Id. at 13:39:32-13:39:44.
Before responding, Ludwick (after offering the excuse that he
was "pretty nervous") patted Smith down to
determine if he was wearing a wire. Id. at
13:39:44-13:39:54; Tr. Vol. I at 135-36.
10} Then they began to discuss specifics. Smith said
"Crazy Joe" was going to have to make it look like
a "botched robbery." (State's Ex. D. at
13:40:27-13:40:35.) Ludwick responded that would help
"defer attention away from me too." Id. at
13:40:32-13:40:35. Ludwick then mentioned that his wife would
probably have her wedding rings on which would be worth three
to five thousand dollars. Id. at 13:40:52-13:41:01.
Within ten seconds of mentioning the rings, Ludwick brought
up the issue of payment. He said, "[t]his may be a
problem and it may nullify it. I don't really have it. My
shit's tied up. And if I go take it out for no reason
it's not gonna do. If that's a problem, I mean,
he's gonna get immediate something that was just talked
about." Id. at 13:41:12-13:41:32. Smith
responded that a down payment was needed to "put the
ball in play." Id. at 13:41:32-13:41:37.
Ludwick assured Smith that he was "serious, " but
he just didn't have $5, 000 for a down payment lying
around. Id. at 13:41:42-13:41:57.
11} Ludwick and Smith reaffirmed that they had
previously agreed on $30, 000 total for the job. Id.
at 13:43:25-13:43:31. Ludwick acknowledged the agreement and
said that he was not "counteroffering, " but that
he could "get to five within a week, " could do
another "five in another week, " and then would
have to see how things worked out. Id. at
13:43:23-13:44:17. Despite consistently maintaining that he
could not offer a down payment immediately, Ludwick offered
frequent assurances throughout the remainder of the
conversation that he could get the total amount very soon
after "something happened to her" by
"clean[ing] out" the accounts, including her
savings, before the matter went to probate. Id. at
13:42:28-13:43:23, 13:52:08-13:52:22, 13:53:06-13:53:30,
13:54:26-13:54:48, 13:55:44-13:56:00, 13:58:46-13:59:15,
14:07:22-14:08:00, 14:09:20-14:10:15. This method, he said,
would work better if law enforcement was investigating him
because he could use the excuse that he was withdrawing money
to avoid probate. Id. at 14:09:20-14:10:15. He
reassured Smith that "Crazy Joe" would not have to
wait for life insurance. Id. at 13:55:17-13:55:35.
He offered Smith money "once the deed's done"
in order to "incentivize" him to get "Crazy
Joe" to do the job. Id. at 14:04:11-14:04:28.
He even went so far as to show Smith a text message from his
wife about her recent five-figure bonus and opined that the
bonus would be available to pay "Crazy Joe."
Id. at 14:06:36-14:08:06; Tr. Vol. I at 152-53.
12} Ludwick provided more details to Smith. He
assured Smith that he did not have kids and that there would
be nobody else in the house but his wife, and therefore,
"no confusion." (State's Ex. D. at
13:47:11-13:47:23, 14:01:38-14:01:48.) He recited his address
to Smith and, after tearing off identifying information from
a piece of scrap paper, had Smith write it down on what was
left of the paper. Id. at 13:47:30-13:48:28; Tr.
Vol. I at 134; State's Ex. C. As he removed the
identifying information, Ludwick remarked, "I guess you
gotta be paranoid. Ain't nothin wrong with it, is
there?" (State's Ex. D at 13:47:54-13:47:57.) He
refused to provide a picture of his wife, observing that even
if Smith were to delete it later, that "shit never
really goes away" and opining that creating an
electronic trail like that would be "the dumbest thing
in the world." Id. at 14:01:31-14:02:05. But he
described her as "5'9", blonde, * * * big nose,
thin, * * * Catholic girl from Indiana. She's thin, five
foot nine, which is relatively tall for a woman. She's
thin, blond, there's only gonna be one."
Id. at 14:02:05-14:02:26. Ludwick lamented that
"unfortunately" the deed could not be done quickly
and noted that, "tomorrow [Friday, March 11th] was an
option * * * but two weeks from tomorrow" would also
work. Id. at 13:48:44-13:48:55.
13} Ludwick said once this was done he planned to
sell the house and move to California in the Fall because he
would no longer have any relations tying him to Ohio.
Id. at 14:14:12-14:14:25. He speculated that,
"I could do it myself. Or get a divorce, but then
I'd end up with half. Well who the fuck wants half?
I'd still gotta work. Let's just do it. Just do the
full monty and get it done with." Id. at
14:14:55-14:15:05. Ludwick closed the meeting by saying he
just wanted to get this done and that he had nobody else he
would trust. Id. at 14:15:19-14:15:42. He had
already asked a loyal friend of his father's about it and
that fellow had refused, saying he did not want to know
anything about it. Id. at 14:15:42-14:16:06.
"This is all or nothin for me, " Ludwick concluded.
Id. at 14:16:11-14:16:15.
14} Ludwick's wife was the last to testify. She
confirmed that she lived in a house in West Jefferson with
Ludwick, to whom she had been married for almost 19 years.
(Tr. Vol. I at 174-76.) She said that they had a normal
marriage but fought occasionally about money because Ludwick
had cashed in his retirement, squandered his $390, 000
inheritance, sometimes got into credit card debt trouble, and
gambled excessively. (Tr. Vol. I at 176-82.) She confirmed
that she had approximately $350, 000 retirement, $300, 000
life insurance, $15, 000 to $20, 000 in various bank
accounts, and her interest in their $475, 000 house, all of
which would have gone to Ludwick if she had been murdered.
(Tr. Vol. I at 179-83.) She verified that she had texted
Ludwick about her $11, 000 bonus during the first week of
March 2016. (Tr. Vol. I at 183-84.) She agreed that her rings
were worth $3, 000 to $5, ...