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State v. Dilley

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
WILLIAM DILLEY, Defendant-Appellant.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-558185-A

         JUDGMENT: AFFIRMED

          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

          FRANK 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.

         I. 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 ").[1] 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, [2] 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 appellant's convictions.

         {¶ 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 review:

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 process rights.
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 ...

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