United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge
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.
Ohio Court of Appeals set forth the following summary of
trial evidence and facts leading to petitioner's
conviction and sentence:
[¶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
[¶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
[¶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).
Trial Proceedings and Direct Appeal
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).
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).
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
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. (See Doc. 4, Ex. 15, 16).
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.