STATE OF OHIO v. AGATHA MARTIN-WILLIAMS
Case No. 2014CA00086
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
March 2, 2015
2015-Ohio-780
Hon. William B. Hoffman, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2012 CR 0164; JUDGMENT: AFFIRMED
For Plaintiff-Appellee:
JOHN D. FERRERO STARK COUNTY PROSECUTOR
RONALD MARK CALDWELL 110 Central Plaza South – Suite 510 Canton, OH 44702-1413
For Defendant-Appellant:
DEREK J. LOWRY 116 Cleveland Ave., NW 800 Courtyard Centre Canton, OH 44702
{¶1} Defendant-Appellant Agatha Martin Williams appeals the April 21, 2014 sentencing entry of the Stark County Court of Common Pleas.
FACTS AND PROCEDURAL HISTORY
{¶2} Defendant-Appellant Agatha Martin Williams was admitted to the practice of law in Ohio in 1991. She practiced law for approximately twenty years.
{¶3} On February 10, 2012, Williams entered a plea of guilty to four counts of grand theft, one count of theft, and one count of forgery. The trial court sentenced Williams to five years of community control, one year of which was to be intensive supervision probation. Williams was fined $27,500.00 and ordered to pay restitution to each of her clients for the amounts stolen. The trial court informed Williams at sentencing that a violation of her community control sanction would result in a maximum consecutive prison sentence imposed on each offense, for a total prison term of 102 months.
{¶4} On September 27, 2010, the Ohio Supreme Court Board of Commissioners on Grievances and Discipline held proceedings to determine whether Williams should be permanently disbarred from the practice of law. Counsel for Relator called Williams on cross examination, inquiring as to when Williams had last left the State of Ohio. Williams responded that she had gone to Pittsburgh, Pennsylvania to gamble approximately one week prior to the hearing. Her conduct in leaving the state to gamble violated the terms and conditions of her probation.
{¶5} Based on the testimony before the Board of Commissioners on Grievances and Discipline, the State filed a motion to revoke her probation. Multiple
{¶6} Williams filed an appeal of the October 15, 2012 sentencing entry. In her appeal, she raised as an assignment of error that the trial court erred when it sentenced Williams to consecutive terms of imprisonment without first making the required findings under
{¶7} Williams appealed our decision as to an assignment of error unrelated to the within appeal. The Ohio Supreme Court declined to accept the appeal for review. See State v. Williams, 137 Ohio St.3d 1442, 2013-Ohio-5678, 999 N.E.2d 696. The U.S. Supreme Court denied a petition of writ of certiorari in State v. Williams, -- U.S. --, 134 S.Ct. 2294, 189 L.Ed.2d 180 (2014).
{¶9} Williams filed a Motion to Waive Fines and Costs prior to the resentencing hearing. At the hearing, the trial court denied the motion.
{¶10} The State and Williams disputed the breadth of the resentencing hearing pursuant to this court‘s remand in State v. Williams. The State argued the trial court could only consider the evidence presented at the October 4, 2012 sentencing hearing. Williams argued the trial court could consider evidence that occurred after the October 4, 2012 sentencing hearing. The trial court stated that our decision in State v. Williams ordered the case remanded to the trial court for the limited purpose of resentencing pursuant to
{¶11} At the conclusion of the testimony, the trial court entered its sentence. The trial court first discussed the
ASSIGNMENTS OF ERROR
{¶13} Williams raises three Assignments of Errors:
{¶14} “I. THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO CONSECUTIVE PRISON TERMS FOR A PROBATION VIOLATION.
{¶15} “II. THE TRIAL COURT LACKED THE AUTHORITY TO RE-SENTENCE THE APPELLANT ON COUNT ONE OF THE INDICTMENT BECAUSE THAT SENTENCE HAS BEEN SERVED PRIOR TO THE RE-SENTENCING HEARING.
{¶16} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING APPELLANT TO PAY A FINE IN EXCESS OF $27,000.00, AFTER REFUSING TO CONSIDER HER FINANCIAL ABILITY TO PAY THE FINE.”
ANALYSIS
I.
{¶17} Williams argues in the first Assignment of Error that the trial court erred when it sentenced her to consecutive prison terms. We disagree.
Standard of Review
{¶18} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court established a two-step procedure for reviewing a felony sentence. The first step is to “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If the first step is satisfied, the second step requires the trial court‘s decision be reviewed under an abuse of discretion standard. Id.
{¶20} At the time of the authoring of this opinion, the Ohio Supreme Court has accepted for review the issue of whether: “the test outlined by the [c]ourt in State v. Kalish appl[ies] in reviewing felony sentences after the passage of
{¶21} The presumption in Ohio is that sentencing is to run concurrent, unless the trial court makes the required findings for imposing consecutive sentences set forth in
{¶22}
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following: (a) The offender committed the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to Section 2929.16, 2929.17 or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) The harm caused by the multiple offenses was so great or unusual that no single prison terms for any of the offenses committed as part of a single course of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶23} 2011 Am.Sub.H.B. 86, which became effective on September 30, 2011, revived the language in former
{¶24} In State v. Bonnell, the Ohio Supreme Court held that a trial court must make the findings mandated by
The Record Supports Consecutive Sentences
{¶25} Williams argues the evidence in the record does not support the trial court‘s decision to impose consecutive sentences pursuant to
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
* * *
(b) The harm caused by the multiple offenses was so great or unusual that no single prison terms for any of the offenses committed as part of a
single course of conduct adequately reflects the seriousness of the offender‘s conduct.
The trial court also requested the parties address the
{¶26} At the conclusion of the resentencing hearing, the trial court discussed
So in going through my responsibilities in this matter, I am looking at Ohio Revised Section 2929.14 subsection 4. * * * I am finding that because of the findings that I just stated in regard to 2929.12(B), it is necessary to protect the public from future crime. She did this with six different individuals: July 2007, August 24, 2009 through February 28, 2011; August 24, 2009. Third count February 28, 2011. Fourth count March 19, 2010 to February 28, 2011. Count 5 March 19, 2010; February 28, 2011. And then 6, May 28, 2010; September 28, 2010.
Or to punish the offender because of the position that she held, the vulnerability of the victims. The fact that the victims came to her in their time of need and the other matters I discussed in regard to the oath which she took when she became an attorney, I am finding that that requires me to impose consecutive sentences.
And under the statute I have to find that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct.
Consecutive sentences – in my opinion when a person has taken from clients who came to her in their time of need, $266,000, I don‘t find that consecutive sentences are disproportionate to that seriousness for each one of those victims. * * *
And the danger the offender poses to the public, goes back to taking advantage of people when they are the most vulnerable. They come to an attorney when their life is crumbling around them, whether it‘s a child who‘s had an accident, as Mr. Jackson talked about; they go to an attorney. Help me, I need help. So I find that also qualifies.
(Tr., p. 98-100).
{¶27} The trial court went on to analyze the consecutive sentencing factors pursuant to
{¶28} The trial court has discretion to impose any sentence within the statutory range. State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. The sentenced imposed by the trial court was within the range permitted by law for the fourth and fifth-degree felonies upon which Williams was convicted. Williams does not argue the trial court erred in sentencing her to the maximum sentence for each count.
{¶30} The record in this case supports the trial court‘s findings. As the trial court discussed when making its findings at the resentencing hearing, the position Williams held as an attorney was a position of trust. Individuals sought her services to assist them in their time of need. Williams abused their trust and victimized multiple people to maintain her gambling habit. While on community control and aware that a violation of her community control would result in the imposition of a 102 month prison sentence, Williams willfully violated her community control by leaving the state to gamble. The trial court acknowledged mitigation factors, such as the fact that her victims were reimbursed by the Client Security Fund. The trial court noted, however, that the Client Security Fund is funded by money from Ohio attorneys. (Tr., p. 94).
{¶31} In this case, the trial court noted factors it considered at sentencing, and specifically stated that it considered the purposes and principles of sentencing under
{¶32} The first Assignment of Error is overruled.
II.
{¶33} Williams argues in her second Assignment of Error the trial court could not resentence Williams on Count One of the indictment because she served that sentence at the time of the resentencing. We disagree.
{¶34} The trial court sentenced Williams to serve 18 months in prison on Count One of forgery, a felony of the fourth degree. Williams was conveyed to prison on September 18, 2012. At the time of the resentencing hearing on April 16, 2014, Williams had served approximately 20 months in prison.
{¶35} Williams argues this court should apply the rationale of State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382. In Holdcroft, the trial court held a trial court does not have authority to resentence a defendant for purpose of adding postrelease control as sanction for a particular offense after the defendant has already served the prison term for that offense. Williams argues that because Williams already served a portion of her prison term, the trial court could not impose a consecutive sentence on the counts already served. Williams states that the 18 months imposed for Count One by the trial court must be concurrent with the remaining counts.
{¶36} We decline to adopt the rationale of Holdcroft in this case. Holdcroft involves the imposition of postrelease control. The present case involves a resentencing for the limited purpose of making the proper findings under
{¶37} The second Assignment of Error is overruled.
III.
{¶38} Williams contends in her third Assignment of Error that the trial court abused its discretion when it ordered Williams to pay a fine of $27,500.00. We disagree.
{¶39} Williams was originally sentenced on October 15, 2012. The original sentencing entry ordered Williams to pay a $27,500.00 fine. Williams appealed the October 15, 2012 sentencing entry, but did not raise the imposition of the $27,500.00 fine as error.
{¶40} Before the resentencing hearing on April 16, 2014, Williams filed a motion to waive fines and costs. Williams argued that as of the April 16, 2014 resentencing hearing, she was indigent. The trial court discussed the motion at the resentencing hearing. It found that it had informed Williams at her plea hearing and the original sentencing hearing that the trial court was going to impose fines and costs. Williams did not object at that time to the imposition of fines and costs. (Tr., p. 18). The trial court also noted that Williams did not appeal the appropriateness of requiring fines and costs. (Tr., p. 18). The trial court found Williams waived the issue and denied the motion to waive fines and costs. (Tr., p. 18).
{¶41} Williams argues that pursuant to
{¶43} Next, we find the trial court was correct to find Williams waived the issue of the imposition of the fine and costs. The doctrine of res judicata establishes that “a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, 387, ¶ 30 citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), at paragraph nine of the syllabus. The resentencing hearing was not a de novo hearing and res judicata prevented the trial court from entertaining the motion to waive fines and costs.
{¶44} The third Assignment of Error of Williams is overruled.
CONCLUSION
{¶45} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J.,
Hoffman, P.J. and
Wise, J., concur.