State v. Coleman

2018 Ohio 4210

Opinion

[Cite as State v. Coleman, 2018-Ohio-4210.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106631

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

WILLIE J. COLEMAN

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AS MODIFIED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-614662-A

BEFORE: Blackmon, J., E.A. Gallagher, A.J., and Jones, J.

RELEASED AND JOURNALIZED: October 18, 2018 ATTORNEYS FOR APPELLANT

Harvey B. Bruner John D. Mizanin, Jr. Harvey B. Bruner & Company 700 West St. Clair Avenue, Suite 110 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor

By: Matthew E. Meyer Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:

{¶1} Defendant-appellant, Willie J. Coleman (“Coleman”), appeals from his convictions

for tampering with records, attempted aggravated theft, and extortion. He assigns the following

error for our review:

Mr. Coleman received ineffective assistance of counsel.

{¶2} Having reviewed the record and pertinent law, we affirm the conviction.

However, we note that Count 8 has been merged into Count 7, so we modify the sentence to so

reflect that there is no fine for Count 8 and remand for issuance of a nunc pro tunc order

correcting the sentencing journal entry. The apposite facts follow.

{¶3} Coleman was indicted in a 15-count indictment for tampering with records and

using sham legal processes on February 3, 2016, August 22, 2016, and February 27, 2017, in

connection with an alleged scheme to commit aggravated thefts against Lawrence Coven

(“Lawrence”), his son, Steven Coven (“Steven”), and Steven’s wife, Melissa Coven (Melissa”)

(collectively referred to as “the Covens”). The indictment set forth three counts of tampering

with records, in violation of R.C. 2913.42(A)(1), three counts of using sham legal processes, in

violation of R.C. 2921.52(B)(4), two counts of attempted aggravated theft, in violation of R.C.

2913.02(A)(1), one count of retaliation, in violation of R.C. 2921.03(A), three counts of

intimidation, in violation of R.C. 2921.03(A), and three counts of extortion, in violation of R.C.

2905.11(A)(1).

{¶4} The matter proceeded to a jury trial on October 16, 2017. The state’s evidence

demonstrated that in 2012, Lawrence, one of the owners of Bedford Associates, leased a building

to Contractor’s Granite, a granite and cabinet distributor. In 2014, Lawrence met Coleman

through Contractor’s Granite. When Contractor’s Granite’s lease ended in 2015, Coleman approached Lawrence and claimed that he had purchased the business. Believing that Coleman

was now the current owner of Contractor’s Granite, Lawrence offered Coleman a lease extension

under which Coleman would pay $3,500 per month, or $42,000 per year. Under the terms of the

lease extension, Coleman could not assert any claims against the individual partners of Bedford

Associates, and was required to sue the partnership and obtain a judgment before obtaining

proceeds on any claim.

{¶5} Shortly after signing the lease extension, Lawrence was called to the building after

police responded to a dispute between Coleman and Contractor’s Granite. Contractor’s Granite

informed Lawrence that Coleman did not work for them, did not purchase their business, and had

no authority to sign the lease extension. After determining that Coleman had falsely represented

that he purchased Contractor’s Granite, Lawrence called Coleman to explain that the lease

extension was of no effect. Coleman’s wife claimed that Coleman had a stroke and could not

communicate. Several days later, Coleman called Lawrence to inquire as to whether Lawrence

had secured a new tenant for the building, and Lawrence told him that he had not, but that

Coleman had no valid lease and no right to be in the building.

{¶6} In October 2015, Lawrence received an “Affidavit of Truth” from Coleman, acting

under the sovereignty of the “Indigenous Moors,” claiming that Lawrence had agreed to pay

Coleman $42,000, in monthly installments of $3,500, in connection with the lease. Coleman

also asserted that if Lawrence failed to provide “proof of National Descent,” or failed to rebut the

“Affidavit of Truth” to Coleman’s “complete satisfaction,” then Coleman could declare that he

and Lawrence had entered into a “agreement by acquiescence,” entitling Coleman to $42,000,

plus “daily penalties of $1,000,” which could be secured through various garnishments and liens

on Lawrence’s property. {¶7} Lawrence’s attorney, Michael Stavnicky (“Stavnicky”) testified that even if Coleman

believed he had a valid lease of Lawrence’s property, this would not require Lawrence to pay

Coleman; rather, it would have obligated Coleman, as tenant, to pay Lawrence, the landlord,

under the terms of the lease extension. Stavnicky sent Coleman a cease and desist letter

demanding that Coleman stop asserting “self-serving and outlandish demands” for money from

Lawrence. In response, Coleman declared Lawrence to be in “default” for failing to adequately

rebut the “Affidavit of Truth.”

{¶8} Stavnicky sent Coleman a second cease and desist letter on November 25, 2015.

Thereafter, Coleman sent Lawrence a second Notice of Default with a “non-negotiable security

agreement” purportedly granting Coleman a security interest in Lawrence’s “collateral.”

{¶9} Stavnicky sent Coleman a third cease and desist letter in December 2015, but several

weeks later, on February 3, 2016, Coleman filed a UCC financing statement with the Ohio

Secretary of State, claiming broad security interests in Lawrence’s “present and future property.”

Additionally, the Moabite Internatl. Group, a “private birthright defender group,” sent Lawrence

a notice of intent to levy. This document declared that the group would seize Lawrence’s real

estate, automobiles, bank accounts, income, and other property if Lawrence did not immediately

tender payment of $98,000. According to the state’s evidence, the UCC filings would have

prevented the Covens from refinancing or selling any of the purportedly encumbered property

and were aimed at attaching and levying upon all listed assets as well as Coven’s income.

{¶10} The following month, the Moabite Internatl. Group demanded $128,000 in order

to release the purported liens, and by May 2016, their demand increased to $149,000. Stavnicky

informed Coleman and the Moabite Internatl. Group that their claims were false, fraudulent and

“a scheme to extort money,” and he ordered them to stop all communication with Lawrence. In response, Coleman filed a complaint against Lawrence in the United States District Court for the

Northern District of Ohio. This complaint was summarily dismissed by the federal court.

{¶11} On August 22, 2016, Coleman filed UCC financing statements with the Cuyahoga

County Fiscal Officer, claiming broad security interests in Bedford Associate’s property, in a

home, “existing and future” property, accounts, and other property owned by Steven and Melissa

in Summit County. Additionally, the Moabite Internatl. Group sent Steven and Melissa a notice

of intent to levy on their assets if they did not immediately tender payment of $42,000.

{¶12} The following month, Bedford Associates and the Covens filed a civil action

against Coleman seeking injunctive and other relief. See Bedford Assocs. v. Coleman, Cuyahoga

C.P. No. CV-16-869226. By October 2016, the Covens obtained a temporary restraining order

and a preliminary injunction rendering the purported liens unenforceable. The injunction further

barred Coleman, the Moabite Internatl. Group, and entities acting in concert with them from

“engaging in any financial activity, claims, liens, public filings, mortgages, UCC filings, security

agreements, debts or liabilities of any kind” related to the Covens. In response, Coleman filed a

pro se affidavit of disqualification against the judge in the civil matter, arguing that the judge’s

property had also been subject to an Indigenous Moor lien filed by Kory Kane (“Kane”), thereby

biasing the court against Coleman. Coleman’s affidavit of disqualification was denied by the

Ohio Supreme Court. See Bedford Assocs. v. Coleman, 150 Ohio St.3d 1298, 2017-Ohio-7055,

84 N.E.3d 1032.

{¶13} On February 27, 2017, despite receiving the temporary restraining order and

preliminary injunction, Coleman filed another UCC financing statement with the Ohio Secretary

of State, claiming security interests in properties and accounts owned by the Covens. According to Lawrence, the value of the properties listed in the UCC filings vastly exceeded the amount that

Coleman claimed Lawrence owed from the failed lease extension.

{¶14} Brian O’Malley (“O’Malley”), the transfer and recording administrator for the

Cuyahoga County Fiscal Office, testified that UCC filings related to real property must be filed

with the Ohio Secretary of State. The county fiscal office accepts for filing UCC filings related

to fixtures, and other documents meeting the requirements of the Ohio Revised Code, unless

certain indicators of fraud are apparent, i.e., those with notary issues or those containing spurious

attachments. In addition, the county fiscal office generally rejects filings prepared under the

auspices of individual sovereignty groups where they are based upon claims that are outside of

the Revised Code.

{¶15} Allison DiSantis (“DiSantis”), the director of business services for the Ohio

Secretary of State, testified that some individuals affiliated with “sovereign movements” falsely

file UCC documents listing themselves as creditors of people with whom they have disputes.

However, UCC filings, even if bogus, are public record and may be accepted for filing, and

individuals who are the subject of fraudulent UCC filings generally have to obtain a court order

to remove false filings. DiSantis opined that Coleman’s February 3, 2016 UCC filing in this

matter appeared to be a nonsensical document, but the office merely received the filing and did

not determine its validity.

{¶16} Cuyahoga County Sheriff’s Detective Tom Roberts (“Det. Roberts”) testified that

he has dealt with individual sovereignty groups in the past, and a hallmark of such groups is the

belief that they are not subject to the prevailing laws or have additional rights not recognized in

the prevailing law. According to Det. Roberts, Antwan Wilson (“Wilson”) is a member of an individual sovereignty group who has used his address, 9500 Wade Park, for correspondence

pertaining to the “Indigenous Moors,” group.

{¶17} At the close of the state’s case, the trial court denied Coleman’s motion for

acquittal, and Coleman testified on his own behalf. Coleman stated that Lawrence approached

him at the end of Contractor’s Granite’s lease and offered to give him a lease extension if he

would remain at the building. Coleman signed the extension, but after the dispute with

Contractor’s Granite, he asked the Moabite Internatl. Group to intercede and help him “recoup

his damages” against Lawrence. Coleman claimed that he followed the recommendations of the

Moabite Internatl. Group in dealing with the Covens when he sent the “Affidavit of Truth.”

This document warned the Covens of potential liens if they failed to respond. Coleman

maintained that he engaged in a constitutional administrative process in this matter and was

entitled to file the liens when he failed to receive responses from Lawrence, Melissa, or Steven.

Coleman also stated that the individuals in the Moabite Internatl. Group are very law-abiding.

He admitted that he knows Wilson as “King,” but he stated that he did not learn until the trial

that Wilson’s address appeared on the Moabite Internatl. Group’s collection letters. Coleman

also admitted that the judge in the civil case explained to him that the liens were not lawful and

that he was prohibited from filing them. Later, after contempt proceedings were filed against

him in the civil case, Coleman removed the liens.

{¶18} Coleman was convicted of all charges. The trial court obtained a presentence

report and a mitigation of penalty report, and also merged various offenses. Ultimately,

Coleman was convicted of two counts of tampering with records, attempted aggravated theft, and

three counts of extortion. The court sentenced Coleman to five years of imprisonment, with three years of mandatory postrelease control and three years of optional postrelease control, and

imposed fines for each set of offenses, but stayed all but $10,000.1

Ineffective Assistance of Counsel

{¶19} In his sole assigned error, Coleman asserts that he was deprived of the effective

assistance of trial counsel when his attorney failed to object to the state’s evidence pertaining to:

the motion to disqualify the judge who presided over the civil proceedings; the reference to the

Indigenous Moor lien filed by Kane; Coleman’s sanction for contempt in the civil case;

Coleman’s question about the trial judge’s nationality; and Coleman’s association with the

Indigenous Moors, member Empress Candace (“Candace”), and Kane. Coleman also complains

that his trial counsel failed to conduct redirect examination in order to permit him to explain his

vision difficulties, his association with the Indigenous Moors; his belief that he could not file a

traditional lawsuit against Lawrence; and that he took a course of action recommended by the

Indigenous Moors after they convinced him to use the “administrative procedure.”

{¶20} We review a claim of ineffective assistance of counsel under a two-part test that

requires the defendant to demonstrate: (1) trial counsel’s performance fell below an objective

standard of reasonable representation; and (2) prejudice arose from the deficient performance.

State v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

{¶21} In evaluating an alleged deficiency in performance, our review is highly deferential

to counsel’s decisions as there is a strong presumption counsel’s conduct fell within the wide

1 In this connection, we note that the convictions on Counts 6-8 were merged into Count 7, but the trial court imposed fines on Counts 7 and 8. Accordingly, we must remand for nunc pro tunc correction of the sentence to reflect that there is no fine on Count 8. range of reasonable professional assistance. Bradley at 142-143, citing Strickland at 689.

Reviewing courts are to refrain from second-guessing the strategic decisions of trial counsel.

State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Debatable trial tactics,

generally do not constitute a deprivation of effective counsel. State v. Dean, 146 Ohio St.3d

106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 288.

{¶22} To show prejudice, a defendant must prove that the lawyer’s deficiency was so

serious that there is a reasonable probability the result of the proceeding would have been

different. Strickland at 694. The benchmark for judging any claim of ineffectiveness is

whether counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result. State v. Frazier, 61 Ohio St.3d

247, 254, 574 N.E.2d 483 (1991).

{¶23} In considering a defendant’s claim that his trial counsel was ineffective for failing

to object to evidence presented by the state, we note that the failure to make objections is not

alone enough to sustain a claim of ineffective assistance of counsel. State v. Cepec, 149 Ohio

St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185,¶ 117, citing State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, ¶ 103. The Ohio Supreme Court has explained:

“experienced trial counsel learn that objections to each potentially objectionable event could actually act to their party’s detriment. * * * In light of this, any single failure to object usually cannot be said to have been error unless the evidence sought is so prejudicial * * * that failure to object essentially defaults the case to the state. Otherwise, defense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel’s failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.”

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 140, quoting

Lundgren v. Mitchell, 440 F.3d 754, 774 (6th Cir.2006). {¶24} Moreover, a lawyer will not be deemed ineffective for failing to object to

evidence that was properly admissible under Evid.R. 402, 403, and 404. See generally State v.

Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 71-75. See also State v. Skatzes,

104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 209-214. The Ohio Supreme Court

has rejected ineffectiveness claims based upon failure to object to evidence where the evidence

was admissible and relevant to the nature and circumstances of the case. See Conway at ¶ 109;

State v. Jones, 91 Ohio St.3d 335, 355, 744 N.E.2d 1163 (2001).

{¶25} Here, Coleman’s pro se motion to disqualify the judge who presided over the civil

proceedings cited the judge’s experience with a similar lien filed by Kane. This motion was

therefore admissible because it was relevant not only to the nature and circumstances of the

instant case, but was also probative of Coleman’s claim that he merely followed the advice of the

Indigenous Moors and did not act of his own intent.

{¶26} Likewise, the evidence pertaining to the contempt proceedings in the civil case was

probative of the nature and circumstances of this matter in order to show Coleman’s intent and

plan. The evidence demonstrated that Coleman had been told that the “administrative

procedure” was an unlawful procedure for asserting a claim to another’s property, yet

subsequently filed a UCC financing statement.

{¶27} Similarly, evidence pertaining to Coleman’s questions about the trial judge’s

nationality was also relevant to the nature and circumstances of the offense, and was admissible.

It was probative of Coleman’s intent and plan to employ unlawful and sham processes, as a

claimed prerogative of individual sovereignty, because the “Affidavit of Truth” demanded to

know Lawrence’s nationality or face a “default.” {¶28} Evidence concerning Coleman’s associations with the Indigenous Moors was also

relevant, probative, and admissible because the “Affidavit of Truth” referenced the Indigenous

Moors. Further, according to Coleman, he believed the “administrative process” that he learned

from the Indigenous Moors authorizes the taking of property where an “Affidavit of Truth” is

unrebutted. (Tr. 504.) Additionally, Coleman’s association with Wilson was probative and

relevant to the nature and circumstances of this case because Wilson’s address appeared on the

Moabite Internatl. Group’s escalating demands for payment from the Covens. Finally, evidence

of the indictments brought against Indigenous Moor members Kane, Wilson, and Candace were

fair subjects of cross-examination because Coleman testified that these individuals are members

of the group, that they are law-abiding, and the UCC filings are proper “administrative”

proceedings for the levying of property. Moreover, defendant’s trial counsel could have

reasonably decided to refrain from objecting to this line of inquiry because it was compatible

with Coleman’s defense that he followed the advice of the Indigenous Moors in placing the liens

and making his demands for payment, and was “led down a path” by Wilson without being “fully

cognizant of what was unfolding.” (Tr. 616-619.)

{¶29} Turning to the issue of defense counsel’s failure to conduct redirect questioning

following Coleman’s cross-examination, we conclude that all of the topics that Coleman now

claims should have been probed were in fact extensively covered through the course of the trial.

Furthermore, Coleman’s trial counsel could have reasonably concluded that additional redirect

questioning would have opened the door to additional damaging re-cross-examination.

{¶30} Accordingly, after thoroughly reviewing the record, we conclude that counsel made

reasonable tactical decisions in this matter and was not ineffective. Moreover, there is nothing in the record to demonstrate that the outcome of the trial would have been different if the

disputed tactical decisions had been different.

{¶31} The assigned error is without merit.

{¶32} Judgment is affirmed, sentence is modified, and case is remanded for nunc pro tunc

correction of the sentence to reflect that there is no fine on Count 8.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

EILEEN A. GALLAGHER, A.J. and LARRY A. JONES, SR., J., CONCUR