Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar and James A. Gutierrez,
Assistant Prosecuting Attorneys, for appellee.
William Dilley, pro se.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
1} Defendant-appellant, William Dilley
("appellant") brings the instant appeal challenging
the trial court's judgment denying his motion to
"void, vacate, set aside, or correct judgment[.]"
Specifically, appellant argues that the trial court violated
his due process rights by disregarding newly discovered
evidence, erred by denying his motion without holding a
hearing, and erred by disregarding this court's judgment
in State v. Dilley, 8th Dist. Cuyahoga No. 106468,
2018-Ohio-1504. After a thorough review of the record and
law, this court affirms.
Factual and Procedural History
2} The instant appeal pertains to the trial court's
November 16, 2018 judgment denying appellant's third
petition for postconviction relief.
3} In Cuyahoga C.P. No. CR-12-558185-A, appellant was charged
in a four-count indictment on January 26, 2012, with
tampering with records, perjury, attempted theft, and theft.
The charges arose from appellant's conduct in his
capacity as a financial advisor for Smith Barney prior to his
termination in 2009.
4} As a financial advisor, appellant counseled clients with
investments. One of Dilley's clients was Betty
Montgomery, a 92-year-old woman who suffered from dementia.
Appellant began managing Montgomery's investments in 1995
when she executed a will and a trust. State v.
Dilley, 8th Dist. Cuyahoga No. 98098, 2012-Ohio-5288,
¶ 3-4 ("Dilley I "). In April 2008,
appellant amended Montgomery's trust, naming himself the
sole beneficiary of the trust. See State v. Dilley,
8th Dist. Cuyahoga No. 99680, 2013-Ohio-4480, ¶ 2
("Dilley II "). At the time of
her death in January 2009, the value of Montgomery's
amended trust was approximately $750, 000. Dilley I
at ¶ 15. After the assets were divided between two
charitable organizations,  appellant ultimately received $75, 000
pursuant to the amended trust.
5} Following a bench trial, the trial court found appellant
guilty on the tampering with records, perjury, and attempted
theft counts. In February 2012, the trial court sentenced
appellant to an aggregate prison term of two years.
6} On March 15, 2012, appellant filed a direct appeal
challenging the trial court's judgment. Dilley
I. He argued that his convictions were not supported by
sufficient evidence and against the manifest weight of the
evidence. On November 16, 2012, this court affirmed
7} On October 23, 2012, appellant filed his first petition to
vacate or set aside the judgment of conviction and sentence.
Therein, appellant argued, in relevant part, that the final
settlement in the probate court proceedings, Citigroup
Global Markets, Inc. v. Estate of Betty Montgomery,
Cuyahoga P.C. No. 2009 ADV 0146836 (Sept. 2, 2010),
determined that Montgomery's amended trust was valid and
barred criminal prosecution pertaining to the validity of the
amended trust. Appellant also alleged that his trial counsel
was ineffective for failing to present information and expert
testimony on Montgomery's incompetency and that the
probate court had exclusive jurisdiction over the matter.
8} The trial court denied appellant's request for
postconviction relief on February 20, 2013. Appellant filed
an appeal challenging the trial court's judgment on March
21, 2013. Dilley II On appeal, this court affirmed
the trial court's judgment on October 10, 2013,
concluding that appellant's claims were untimely and
barred by res judicata. Id. at ¶ 13.
9}On January 19, 2017, appellant filed a second petition for
postconviction relief, captioned "motion to void
judgment, motion to vacate or set aside judgment."
Therein, he argued again that his convictions were void
because probate court had exclusive jurisdiction over the
matter, the probate settlement barred criminal prosecution,
and that certain facts presented at trial were not accurate.
10} Following a hearing on October 24, 2017, the trial court
denied appellant's motion to void judgment on October 25,
2017. Appellant filed an appeal challenging the trial
court's judgment on November 6, 2017. Dilley,
8th Dist. Cuyahoga No. 106468, 2018-Ohio-1504
("Dilley III"). On April 19, 2018, this
court affirmed the trial court's judgment, concluding
that Dilley failed to meet the requirements for successive
petitions for postconviction relief set forth in R.C. 2953.23
and that his claims were barred by res judicata. Dilley
III at ¶ 16-17.
11} On October 17, 2018, appellant filed a third petition for
postconviction relief, captioned "motion to void,
vacate, set aside, or correct judgment based on newly
discovered evidence." The trial court denied
appellant's motion on November 19, 2018.
12} It is from this judgment that appellant filed the instant
appeal on January 11, 2019. He assigns three errors for
I. The [t]rial [c]ourt erred and abused its discretion and
deprived the [a]ppellant of his due process rights by not
granting the [a]ppellant a hearing and not specifically
ruling on Betty Montgomery's competency for the time
period in question or the date of importance in its judgment
entries thereby making crucial evidence inadmissible and
preventing the [a]ppellant from discovering or presenting the
ground supporting the motion for new trial or voiding
judgment. The [t]rial [c]ourt also abused its discretion and
committed a prejudicial error by failing to hear or rule on
new evidence brought as a result of the April 19, 2018 Case
No. 106468 decision in the Eighth District Court of Appeals
[f]inding Betty R. Montgomery retroactively incompetent
during the period of importance thereby activating Betty R
Montgomery springing [d]urable [g]eneral [p]ower of
[a]ttorney retroactively to that time period.
II. The [t]rial [c]ourt erred and abused its discretion by
ignoring the Court of Appeals judgment entry and opinion that
ruled Betty Montgomery to be retroactively incompetent during
the time period in question thereby retroactively activating
the 1995 springing durable general power of attorney giving
the [a]ppellant legal authority as attorney in fact to create
new or amended trusts for Betty Montgomery. The [t]rial
[c]ourt's 2012 final judgment did not determine if Betty
Montgomery was incompetent when she executed the 2008 Amended
and Restated Trust and Will on the date of importance or if
the 2010 [p]robate judgment was void thereby preventing the
[a]ppellant from presenting evidence and violating his due
III. The [t]rial [c]ourt erred and abused its discretion by
denying the [appellant's [m]otion and evidence of the
[appellant] conviction being void under ...