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Agostini v. Warden, Pickaway Correctional Institution

United States District Court, S.D. Ohio, Western Division

August 5, 2019

JERRY AGOSTINI, Petitioner,
v.
WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.

          Barrett, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         Petitioner, an inmate in state custody at the Pickaway Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on the petition and respondent's return of writ, to which petitioner has not responded. (Doc. 5). As noted below, petitioner has also filed a motion to supplement Ground One (Doc. 6), a motion to supplement the record (Doc. 9), and a motion for transcripts. (Doc. 12).

         I. FACTUAL BACKGROUND

         The Ohio Court of Appeals set forth the following summary of trial evidence and facts leading to petitioner's conviction and sentence:[1]

[¶2] On August 28, 2015, appellant was indicted in Warren County Court of Common Pleas No. 15CR31283 on the following counts: one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a felony of the second degree; eight counts of grand theft of a motor vehicle by deception in violation of R.C. 2913.02(A)(3), felonies of the fourth degree; ten counts of theft by deception in violation of R.C. 2913.02(A)(3), where three counts were felonies of the fourth degree and seven counts were felonies of the fifth degree; two counts of attempted grand theft of a motor vehicle by deception in violation of R.C. 2913.02(A)(3) and 2923.02(A), felonies of the fifth degree; one count of attempted theft by deception in violation of R.C. 2913.02(A)(3) and 2923.02(A), a felony of the fifth degree; two counts of receiving stolen property of a motor vehicle in violation of R.C. 2913.51(A), felonies of the fourth degree; four counts of receiving stolen property in violation of R.C. 2913.51(A), where two counts were felonies of the fourth degree and two were felonies of the fifth degree; and one count of theft of a check by deception in violation of R.C. 2913.02(A)(3), a misdemeanor of the first degree.
[¶3] On December 21, 2015, appellant was indicted in Warren County Court of Common Pleas No. 15CR31555 on one count of identity fraud in violation of R.C. 2913.49(B)(1) and one count of forgery in violation of R.C. 2913.31(A)(1), felonies of the second degree as the victim of the offenses, Don Weber, was an elderly person.
[¶4] The charges arose out of appellant's conduct between January 21, 2014, and February 25, 2015, wherein appellant used his company, Engineered Environmental, LLC, false financial documents, and the identity of others to obtain or attempt to obtain 12 motor vehicles and various pieces of commercial construction equipment from car dealerships and businesses located in Fort Mitchell, Kentucky and Cuyahoga, Warren, and Hamilton Counties in Ohio. Engineered Environmental was a home improvement company that had three bank accounts with Chase Bank. Bank records for these accounts indicated that the highest balance in any of these accounts was $375. Appellant, however, represented his business as a multimillion dollar business and presented false financial statements to car dealerships and the dealerships' credit companies in order to obtain financing for vehicles. Appellant presented documentation purportedly for Engineered Environmental for the years ending in December 2012 and December 2013. The financial documents falsely claimed to have been audited by the prestigious accounting firm “DeLoitte & Touche, USA, LLP” and set forth a gross profit for Engineered Environmental of $3, 077, 000 in 2012 and $3, 427, 300 in 2013 and a net income of $350, 500 in 2012 and $376, 300 in 2013.
[¶5] Using these false documents and either his own identity or that of Robert Yenke or Don Weber, appellant deceptively obtained vehicles or commercial equipment for his business. When obtaining the vehicles, appellant would also exploit the sales practice of financing “upfit” improvements to the vehicles to fraudulently obtain cash for vehicle upgrades that were never completed. In a typical upfit transaction, a customization is performed by a company that receives a referral from the vehicle dealership. The cost of the upfit is estimated and is added to the customer's loan amount for the vehicle purchase. When the loan proceeds become available, the dealership pays the upfit provider directly after receiving an invoice. The customer makes monthly payment towards the loan, and this payment is applied towards the cost of the vehicle and the cost of the upfit.
[¶6] Appellant did not follow this practice with respect to upfitting the vehicles he fraudulently obtained. Rather than using a business known to the dealerships for the upfit work, appellant claimed the work was completed by various businesses with whom he had a relationship. Appellant produced false invoices from these businesses claiming that the upfit work had been completed and paid for by appellant's business, even though no work had been started or completed on the vehicles. The dealerships then sent checks to Engineered Environmental for the cost of the upfit work appellant alleged he had already paid. Appellant cashed these checks at various CheckSmart locations. Through his deceptive actions, appellant was able to obtain over $75, 000 in cash for upfit work that was never performed.
[¶7] Eventually law enforcement was apprised of appellant's conduct and an investigator in the economic crime unit of the Ohio Attorney General's Office began looking into the matter. This investigation led to the charges set forth in the indictments.

(Doc. 4, Ex. 22 at PageID 224-26) (footnotes omitted).

         II. PROCEDURAL HISTORY

         State Trial Proceedings and Direct Appeal

          On August 28, 2015, the Warren County, Ohio, grand jury returned a twenty-nine-count indictment charging petitioner with eight counts of grand theft of a motor vehicle by deception, ten counts of theft by deception, two counts of attempted grand theft of a motor vehicle by deception, four counts of receiving stolen property, two counts of receiving stolen property of a motor vehicle, and one count each of engaging in a pattern of corrupt activity, theft of a check by deception, and attempted theft by deception. (See Doc. 4, Ex. 1).

         On December 21, 2015, the Warren County, Ohio, grand jury returned a second indictment, charging petitioner with one count each of identity fraud and forgery. (Doc. 4, Ex. 8). The two indictments were consolidated for trial. (Doc. 4, Ex. 10). The trial court appointed petitioner counsel. (See Doc. 4, Ex. 2, 3, 6).

         Prior to trial, through counsel, petitioner filed a motion to dismiss counts two through ten of the indictment. (Doc. 4, Ex. 11). Petitioner's motion was overruled by the trial court.

         On February 2, 2016, following a jury trial, petitioner was found guilty of all charges. (Doc. 4, Ex. 12, 13, 14). Petitioner was sentenced to serve a total aggregate prison sentence of nineteen-years in the Ohio Department of Corrections.[2] (See Doc. 4, Ex. 15, 16).

         Petitioner, through new counsel, filed a timely notice of appeal. (Doc. 4, Ex. 18). Petitioner raised the following five assignments of error in his appellate brief:

1. The trial court erred in its jury instructions.
2. Counts 2 through 10 violated double jeopardy.
3. The verdict was against the sufficiency of the evidence.
4. The trial court erred by bringing Mr. Agostini to trial after the 90 day deadline for a speedy trial pursuant to R.C. ...

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