State v. Rigsbee

2013 Ohio 1239

• Court: Ohio Court of Appeals
• Decided: March 29, 2013
• Docket: 2012 CA 31
• Status: Published

Opinion

[Cite as State v. Rigsbee, 2013-Ohio-1239.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 31

v. : T.C. NO. 06CR253

CHERYL L. RIGSBEE : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 29th day of March , 2013.

KEVIN S. TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor, 200 N. Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road N.E., Bloomingburg, Ohio 43106 Attorney for Defendant-Appellant

FROELICH, J.

{¶ 1} Cheryl Rigsbee appeals from a judgment of the Champaign County

Court of Common Pleas, which denied without a hearing her Crim.R. 32.1 motion to 2

withdraw her plea after sentencing. For the following reasons, the judgment of the trial

court will be affirmed.

{¶ 2} Rigsbee was accused of stealing money from her employer for

approximately five years from 2001 to 2006. “Specifically, Rigsbee would make checks

payable to herself and then endorse the checks with her supervisor’s signature stamp. Each

check was made out for less than $10,000 in order to circumvent the company’s policy that

checks for more than $10,000 required two signatures. Rigsbee would then cash the checks,

keeping the money for personal use. When the cancelled checks were returned by the bank,

Rigsbee would immediately shred them. She also would alter the information in the

company’s weekly financial reports before submitting them to her supervisor in order to

conceal her wrongdoing.” State v. Rigsbee, 174 Ohio App.3d 12, 2007-Ohio-6267, 880

N.E.2d 527, ¶ 2 (2d Dist.).

{¶ 3} Rigsbee’s conduct was eventually discovered by her supervisor, and it was

reported to the police. The company’s investigation revealed that she had forged 235

checks totaling over $1.9 million. Rigsbee spent the money on a wide variety of personal

items, trips, payments on student loans, and gifts to family and friends.

{¶ 4} In December 2006, Rigsbee pled guilty to one count of aggravated theft (by

deception) of $1 million dollars or more, in violation of R.C. 2913.02(A)(2) and (B)(2), six

counts of forgery, in violation of R.C. 2913.31(C)(1), and one count of tampering with

records, in violation of R.C. 2913.42(A)(1). The trial court imposed the maximum sentence

on each count; it ran the sentences for aggravated theft and one count of forgery

consecutively, but concurrently with the sentences in all the other counts, for an aggregate 3

prison term of 15 years. Rigsbee was also fined and ordered to pay restitution.

{¶ 5} Rigsbee appealed, raising several issues related to her sentence. We

affirmed her conviction. Rigsbee, 174 Ohio App.3d 12, 2007-Ohio-6267, 880 N.E.2d 527.

{¶ 6} In May 2011, Rigsbee filed a motion to withdraw her plea, claiming that at

the time of the plea she had never seen the company’s forensic accounting audit and, to her

knowledge, neither had her attorney. She claimed that the amount of the theft, as

established by the audit, “did not match the amount of the checks deposited in [her] personal

account” and that “the two sets of checks were never reconciled.” Thus, she disputed the

accuracy of the amount she was accused of stealing. She claimed that she did not see the

checks she had allegedly drawn on the company’s accounts until August 2011, when she was

represented by different counsel, and that she would not have pled guilty if she had known

that her attorney at the time of her plea had not reviewed and reconciled the bank statements

and/or checks. She also claimed that she had not understood the nature of a plea to a bill of

information.

{¶ 7} The trial court overruled Rigsbee’s motion to withdraw her plea, stating

that she had failed to demonstrate a manifest injustice, that her “self-serving statements

[were] insufficient to overcome the strong record to the contrary,” and that Rigsbee’s delay

in filing her motion weighed against her credibility.

{¶ 8} Rigsbee appeals, arguing that the trial court erred in denying her motion to

withdraw her plea without a hearing, that she was denied the effective assistance of trial

counsel at the time of her plea, and that her plea was not knowingly, intelligently, and

voluntarily entered. [Cite as State v. Rigsbee, 2013-Ohio-1239.] {¶ 9} A Crim.R. 32.1 motion to withdraw a guilty plea after sentencing should be

granted only to correct a manifest injustice. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d

1324 (1977). A hearing on such a motion is required only if the facts alleged by the

defendant, if accepted as true, would require the plea to be withdrawn. State v. McComb,

2d Dist. Montgomery Nos. 22570, 22571, 2009-Ohio-295, ¶ 19. The motion is directed to

the sound discretion of the trial court, which assesses the good faith, credibility and weight

of the movant’s assertion in support of the motion. State v. Xie, 62 Ohio St.3d 521, 584

N.E.2d 715 (1992). The standard is designed to prevent a defendant from pleading guilty in

order to test the potential punishment, and then withdrawing the plea if the punishment is not

what he or she had hoped. Id., citing Kadwell v. United States, 315 F.2d 667, 670 (9th

Cir.1963). A trial court’s ruling on a motion to withdraw a guilty plea is reviewed for an

abuse of discretion. State v. Barnett, 73 Ohio St.3d 244, 596 N.E.2d 1101 (1991).

{¶ 10} We review alleged instances of ineffective assistance of trial counsel under

the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled to

a strong presumption that his or her conduct falls within the wide range of reasonable

assistance. Strickland at 688. To establish ineffective assistance of counsel, it must be

demonstrated that trial counsel’s conduct fell below an objective standard of reasonableness

and that her or his errors were serious enough to create a reasonable probability that, but for

the errors, the outcome of the case would have been different. Id.

{¶ 11} Rigsbee claims that the amount stolen, based on the forensic audit, “did not

match the amounts of the checks deposited in [her] personal account.” She also asserts that 5

she never saw the audit or the checks on which her employer relied, that “to her knowledge”

her attorney did not see them either, and that she “was never asked” to reconcile the “two

sets of checks.” Rigsbee claims that, if she had known that her attorney did not reconcile

the amounts, she would not have entered her plea, and that counsel’s failure to do so was

ineffective. Finally, she claims that she did not realize she was entering a plea, because she

pled to a bill of information.

{¶ 12} Although Rigsbee claims that the amount the bill of information alleged to

have been stolen was inaccurate, she does not state with any specificity how she arrived at

this conclusion. She states that she saw at least some of the “checks claimed to be

involved” in this case in August 2010, several months before her motion was filed, but her

affidavit did not identify any specific problem(s) with the checks she saw.

{¶ 13} Furthermore, Rigsbee’s assertion is refuted by the record. At the plea

hearing, Rigsbee’s attorney stated that he and Rigsbee had gone through the individual

checks and that she “acknowlege[d] all the figures and check numbers in [the bill of

information] are correct.” The bill of information listed the month, check number, amount,

bank, and date cleared for the checks at issue under each count of forgery; in all, over 200

forged transactions were documented in this manner under the forgery charges. Rigsbee’s

affidavit did not specifically allege or identify a single error in the amounts reflected by this

listing, nor has she disputed her attorney’s assertion at the hearing that they had reviewed the

“figures and check numbers” for accuracy, if not the check themselves. Similarly, the bill

of information listed the total amounts, per year, by bank, for the count of aggravated theft,

which Rigsbee did not specifically refute. 6

{¶ 14} Rigsbee repeatedly refers to two sets of checks; one set is the checks she

wrote to herself on the company’s account, but the other set to which she refers is unclear.

She asserts that the amount of loss claimed by her employer did not match the checks

deposited into her account. But she also suggests that the checks written from the company

account should have matched her personal expenditures (personal checks); this does not

logically follow, since Rigsbee could have transferred money out of her account by means

other than personal check. Our prior opinion indicates that she cashed some of the checks,

which would have made it even harder to track the funds. Rigsbee failed to demonstrate,

other than through her self-serving statements, that the amount she actually stole differed

from the amount the bill of information alleged was stolen.

{¶ 15} Moreover, with respect to the aggravated theft, Rigsbee was found to have

stolen over $1.9 million. R.C. 2913.02(A)(2) and (B)(2) defined aggravated theft at that

time as theft of more than $1 million. Even if Rigsbee were correct in asserting that there

were some discrepancies in the amounts reflected in her records and the company’s records,

there is no evidence to suggest that such discrepancies totaled more than $900,000.

Likewise, Rigsbee was charged with six counts of forgery and one count of tampering with

records, but by the company’s estimate, she had completed 235 fraudulent transactions.

Assuming Rigsbee were able to raise specific, substantive questions about some of the

transactions – an assumption that is not supported by her affidavit – there is no basis to

conclude that she did not commit the charged forgeries and tampering with records. The

trial court did not abuse its discretion in concluding that Rigsbee’s allegations lacked

credibility or that the facts alleged in her motion did not require the plea to be withdrawn. 7

{¶ 16} Rigsbee asserts that her attorney did not review the alleged amounts of the

thefts for accuracy, without offering any evidence in support of this assertion. The plea

transcript, on the other hand, contains a statement from the attorney that he and Rigsbee had

reviewed specific information, such as the date and amount, related to over 200 checks

(although it does not indicate the attorney had copies of the checks in hand). Based on this

evidence, and because of the assumption that trial counsel provided reasonable assistance,

the trial court was not required to conduct a hearing on Rigsbee’s unsupported claim that her

attorney failed to obtain or review the relevant documents.

{¶ 17} As for Rigsbee’s allegation that she did not know “that a Bill of

Information was a plea,” we note that more than four years passed between her plea and her

motion to withdraw the plea. The trial court did not abuse its discretion in concluding that

the delay in raising this argument weighed against its credibility. The trial court reasonably

concluded that, if Rigsbee had truly misunderstood the fundamental nature of the actions she

took when she entered her plea, for which she was sentenced to prison, she would have

raised that issue more quickly. Further, the transcript of the plea hearing demonstrates that

the trial court explained to Rigsbee a waiver of indictment, also referred to in the transcript

as a waiver of grand jury, and its effect, before she signed it. It was clear from this

discussion that, if Rigsbee signed the waiver, the bill of information would stand in the place

of an indictment. This discussion refutes Rigsbee’s suggestion that she did not understand

the effect of the bill of information.

{¶ 18} Because the facts alleged in Rigsbee’s motion and affidavit were

insufficient to justify the withdrawal of her plea, the trial court did not err in failing to 8

conduct a hearing before it overruled the motion.

{¶ 19} As a final matter, we note that Rigsbee’s brief contains one short paragraph

in which she alleges that counsel was ineffective in failing to object to the aggregation of

several checks into each count of forgery, which “artificially raised” the degree of the

offenses. Appellate counsel states that he “found no authority” for charging the offenses in

this manner. According to the State, the parties agreed to handle the 235 forged checks in

this manner, with each count representing a different year, and Rigsbee would have faced a

more serious penalty if the parties had not aggregated the checks into six counts.

{¶ 20} We express no opinion as to the merits of Rigsbee’s argument related to the

aggregation of the forgery charges, although such an aggregation was arguably permissible

under R.C. 2913.61(C)(2) (“If an offender is being tried for the commission of a series of

violations of * * * section 2913.02, * * * or section 2913.31 * * * of the Revised Code, * * *

pursuant to a scheme or course of conduct, all of those offenses may be tried as a single

offense.”). Regardless, this argument was not properly raised in a motion to withdraw a

plea. Rigsbee took a direct appeal from her conviction, in which she raised four

assignments related to her sentence. Any argument about alleged error in how the offenses

were charged or about ineffective assistance of trial counsel should have been raised at that

time or in a motion for post-conviction relief. It was not properly raised in a motion to

withdraw a plea, because the trial court lacked the authority to modify its judgment or

sentence when this motion was filed. Moreover, Rigsbee does not allege that the error, if

any, affected her willingness to enter a plea.

{¶ 21} The assignment of error is overruled. 9

{¶ 22} The judgment of the trial court will be affirmed.

FAIN, P.J. and HALL, J., concur.

Copies mailed to:

Kevin S. Talebi George A. Katchmer Hon. Nick A. Selvaggio