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Disciplinary Counsel v. Cheselka

Supreme Court of Ohio

December 24, 2019

Disciplinary Counsel

          Submitted May 8, 2019

          On Certified Report by the Board of Professional Conduct of the Supreme Court, No. 2017-050.

          Joseph M. Caligiuri, Disciplinary Counsel, and Lauren A. Gardner, Special Assistant Disciplinary Counsel, for relator.

          Alkire & Nieding, L.L.C., and Richard C. Alkire; and Robert V. Housel, for respondent.

          Per Curiam.

         {¶ 1} Respondent, Michael Joseph Cheselka Jr., of Cleveland, Ohio, Attorney Registration No. 0076667, was admitted to the practice of law in Ohio in 2003.

         {¶ 2} In a January 2018 amended complaint, relator, disciplinary counsel, charged Cheselka with 28 violations of the Rules of Professional Conduct arising from his representation of six separate clients in criminal matters. Relator alleged that among other violations, Cheselka failed to provide competent representation, failed to act with reasonable diligence and promptness, failed to reasonably communicate with clients, failed to deposit a fee paid in advance into his client trust account, made a false statement of material fact to a court and to the Board of Professional Conduct in this disciplinary proceeding, and failed to cooperate in the investigation of three client grievances.

         {¶ 3} After a panel of the board conducted a hearing, the board issued a report in which it found that Cheselka committed 19 rule violations and recommended that we dismiss eight alleged rule violations. On those findings, the board recommended that we suspend Cheselka from the practice of law for two years, with one year stayed on conditions, and order him to serve a one-year period of monitored probation upon reinstatement. No objections have been filed.

         {¶ 4} We adopt the board's findings of misconduct with the exception of one violation that was not alleged in relator's complaint, dismiss the eight remaining alleged rule violations, and adopt the board's recommended sanction.


         Count I: The Jojwan Martin Matter

         {¶ 5} In 2008, Jojwan Martin was convicted of murder and sentenced to 18 years to life in prison. His conviction rested largely upon the testimony of two eyewitnesses, including Earwin Watters, who was in federal custody and awaiting sentencing on criminal charges at the time of Martin's trial. The Eighth District Court of Appeals affirmed Martin's conviction.

         {¶ 6} In early 2011, Watters contacted Martin's mother, Cynthia Bester, and told her that he had given false testimony against Martin under pressure from the police and prosecutors, that he had not actually witnessed Martin kill anyone, and that he wanted to recant his testimony. On March 14, 2011, Watters executed a handwritten affidavit stating that he had been pressured to give false testimony at Martin's trial to obtain a lesser sentence in his own criminal case. Bester sent Watters's affidavit and other materials regarding Martin's case to the Ohio Innocence Project at the University of Cincinnati College of Law, but the project declined to take the case and returned the file to Bester in May 2012.

         {¶ 7} Bester and her mother met with Cheselka in November 2012 and gave him Watters's affidavit. Cheselka agreed to file a petition for postconviction relief on Martin's behalf for a flat fee of $10, 000 (plus $525 for a copy of the trial transcript), which Bester and her mother paid in installments from 2013 to 2015.

         {¶ 8} Between August 2013 and March 2016, Cheselka asked Watters to write and execute four additional affidavits-which he later claimed were necessary to correct procedural and substantive defects in Watters's original affidavit. But Cheselka did not file Martin's petition for postconviction relief until May 13, 2016-approximately three and a half years after he first met with Bester and received Watters's 2011 affidavit. And even then, Watters had not signed the affidavit that Cheselka notarized and submitted with Martin's petition for postconviction relief.

         {¶ 9} Because Cheselka filed the petition more than 365 days after the transcript was filed in Martin's direct appeal, he was required to show that Martin had been unavoidably prevented from discovering the facts that supported the petition. See R.C. 2953.21(A)(2) and 2953.23(A)(1). In the petition, Cheselka explained that Martin "was unavoidably delayed beyond the 365 day deadline because Earwin Watters only provided his unsolicited affidavit in 2016, well-past the statute's general rule and under circumstances unanticipated by [Martin]." (Emphasis added.) Cheselka failed to mention that Watters first came forward to recant his testimony in 2011 and that he had executed four previous affidavits. Cheselka continued that deception in his May 2017 response to relator's letter of inquiry, in which he affirmatively stated that "[t]here was no affidavit provided in 2011" and that "[t]here was never a proper affidavit executed before March of 2016." And at his disciplinary hearing, Cheselka admitted that there was no legally significant difference between the first and final affidavits. The trial court denied Martin's postconviction petition without an opinion.

         {¶ 10} The board found that Cheselka's conduct violated Prof.Cond.R. 1.3 (requiring a lawyer to act with reasonable diligence in representing a client), 3.3(a) (prohibiting a lawyer from knowingly making a false statement of fact or law to a tribunal), 8.1(a) (prohibiting a lawyer from knowingly making a false statement of material fact in connection with a disciplinary matter), and 8.4(c) (prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Citing the insufficiency of the evidence, however, the board recommends that we dismiss relator's allegations that Cheselka had failed to reasonably communicate with Martin and that Cheselka had failed to promptly refund any unearned portion of his fee at the conclusion of his representation. We adopt the board's findings of misconduct and dismiss the remaining allegations of misconduct with respect to this count.

         Count II: The Barbara Clark Matter

         {¶ 11} In October 2015, Barbara Clark pleaded guilty to stealing more than $188, 000 of United States Social Security Administration Supplemental Security Income benefits by continuing to collect her mother's benefits for approximately 30 years after her mother's death. Due to Clark's age and deteriorating health, her counsel urged the trial court to deviate from the guideline sentence of 18 to 24 months of imprisonment and confine her at home. On February 17, 2016, the court sentenced Clark to six months in prison followed by three years of supervised release.

         {¶ 12} Shortly after the sentencing hearing-and before the trial court issued its sentencing entry-Clark's son met with Cheselka and expressed his concern that Clark would die in prison. Cheselka agreed to file an emergency motion to modify Clark's sentence. Cheselka had never filed such a motion before but was aware that pursuant to 18 U.S.C. 3582(c), once the trial court issued its ...

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