Appellate court denies Slagle application to reopen case
Lead Summary
By
Brandy Chandler-brandychandler@gmail.com
Ohio's Fourth District Court of Appeals has affirmed the conviction and sentence regarding and denied an application to reopen the case of a former Highland County attorney who is serving time in prison for stealing funds from his clients.
John W. Slagle was found guilty during a jury trial in December 2009 on charges that he allegedly used funds from his clients for his own use. The jury convicted him of grand theft, a felony of the fourth degree; theft from an elderly person, a felony of the third degree; aggravated theft, a felony of the third degree; grand theft, a felony of the fourth degree; and falsification, a misdemeanor of the first degree. He was sentenced to six years in prison and was ordered to pay restitution in the amounts of $73,516, $18,546 and $82,242, as well as court costs. Additionally, Slagle entered into an Alford plea on April 14, 2010 on one count of theft, a felony of the fourth degree. When he was indicted, the plea was initially a felony of the second degree but was reduced as a result of the plea.
He is also serving an additional sentence on separate charges out of Montgomery County.
Slagle resigned from the practice of law as a disciplinary action was pending against him.
In March 2011, the Ohio's Fourth District Court of Appeals filed a decision that upheld the decision of the trial court regarding Slagle's case.
Slagle represented himself in the application to reopen the case.
The state was represented by Highland County Prosecutor Anneka Collins.
According to the decision filed by the court of appeals last week, Slagle filed an application to reopen his case in May 2011. Slagle alleged ineffective assistance from counsel in his appeal and submitted five assignments of error. Slagle alleged his council "refused and neglected to raise the issue of the expiration of the statute of limitations" relating to count one of the indictment; that the court did not comply with the Ohio Revised Code, sentencing him to prison when other similar cases did not have prison sentences; "whether or not the state of Ohio failed and refused to follow the clear mandate section 2929.19(B)(6) of the Ohio Revised Code;" "whether or not the jury verdicts were inconsistent;" and that "the trial court failed to follow the mandatory dictate of section 2929.41(A)" of the ORC.
Regarding the first assignment of error, Slagle alleged that the statute of limitation on count one, theft, of the indictment had expired 18 months before his April 2009 indictment. The ORC states that prosecution must take place within six years after that felony offense. The theft offense had allegedly occurred in July 2001. The state argued that Slagle's "conduct was not discovered until 2008, and thus falls within and exception by the statute" and that the ORC provides that when an offense occurs as part of a continuing course of conduction, "the period of limitation does not begin to run until such course of conduct or the accused's accountability for it terminates."
According to the appeal, Slagle was "an attorney and fiduciary in relation to the victim in count one," a special needs trust.
"In support of its argument, the state contends (Slagle) went to great lengths in 'covering up' the corpus delicti (body of crime) of his criminal activity, explaining that the disciplinary counsel (of the Supreme Court of Ohio) was the first organizational representation to realize (Slagle) may have been mishandling funds, which led to a report to law enforcement in December 2008. Although (Slagle) contends that the exhibit attached in support of his application purports to demonstrate that the state had knowledge of his crimes as early as 2002 ... the exhibit was not made part of the record ... and is now property before us on appeal," the court wrote in the decision. "As such, and based upon a review of the record, it appears that the state did not discover (Slagle's) criminal conduct until 2008 ... the statute did not begin to run until that time and (Slagle's) April 7, 2009 indictment was timely filed."
The court stated that Slagle "failed to demonstrate that he was prejudiced by appellate counsel's failure to assign this error for review."
The second and fifth assignments of error were addressed together.
"Despite (Slagle's) contention that his appellate counsel failed to challenge the trial court's decision to impose non-minimum, consecutive rather than concurrent sentences, our review of the record reveals that appellate counsel did, in fact, challenge the trial court's imposition of non-minimum, consecutive sentences, which resulted in a cumulative sentence of 10 years ... We determined that (Slagle's) combined sentence of 10 years was within the statutory range, was not clearly and convincingly contrary to law and was not an abuse of discretion by the trial court. Further, we specifically cited language in the record wherein the trial court explained its reasons for imposing the sentences it did, which related to (Slagle's) lack of explanation and remorse for his actions, coupled with the fact that (Slagle) held a public trust. Thus, because these issues were raised and addressed on direct appeal, (Slagle) has failed to demonstrate any error the part of his appellate counsel."
Regarding the third assignment of error, which alleges his counsel provided ineffective assistance regarding a failure to assign an error on director appeal on an ORC mandate that "requires the court to consider the offender's ability to pay the amount of the sanction or fine. (Slagle) contends there 'is no evidence whatsoever that the court did anything to comply with this mandate and then fined (Slagle) thousands of dollars knowing full well (Slagle) was and is indigent."
The appellate court found that the court did not abuse its discretion in imposing the fines. The trial court stated that it had considered the record and the pre-sentence investigation report out of Montgomery County, but that contained no information on Slagle's income or assets. It did summarize the charges in Montgomery County "which alleged (Slagle) had stolen $780,000 from the law firm that employed him." Slagle's finances were also "much-discussed" in sentencing, according to the appellate court, which included information that Slagle had "dower interest" in two separate properties approximately worth $75,000 and $86,000. The court found that the trial court was aware of Slagle's financial situation and had examined his current and future ability to pay when it imposed financial sanctions against him.
In the fourth assignment of error, regarding the allegation that the jury verdicts were "inconsistent," the court stated that Slagle did not argue how the verdict was inconsistent "or which jury verdicts were inconsistent."
In conclusion, the court of appeals wrote that, "We cannot conclude that appellate counsel was ineffective for failing to assign as error on appeal issues which would not have been found to be meritorious. The process of winnowing out weaker arguments such as these from appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.
"After our review of the foregoing, we find no genuine issue concerning counsel's ineffectiveness ... The request to reopen (Slagle's) appeal is without merit, and his application is hereby denied."
Ohio's Fourth District Court of Appeals has affirmed the conviction and sentence regarding and denied an application to reopen the case of a former Highland County attorney who is serving time in prison for stealing funds from his clients.
John W. Slagle was found guilty during a jury trial in December 2009 on charges that he allegedly used funds from his clients for his own use. The jury convicted him of grand theft, a felony of the fourth degree; theft from an elderly person, a felony of the third degree; aggravated theft, a felony of the third degree; grand theft, a felony of the fourth degree; and falsification, a misdemeanor of the first degree. He was sentenced to six years in prison and was ordered to pay restitution in the amounts of $73,516, $18,546 and $82,242, as well as court costs. Additionally, Slagle entered into an Alford plea on April 14, 2010 on one count of theft, a felony of the fourth degree. When he was indicted, the plea was initially a felony of the second degree but was reduced as a result of the plea.
He is also serving an additional sentence on separate charges out of Montgomery County.
Slagle resigned from the practice of law as a disciplinary action was pending against him.
In March 2011, the Ohio's Fourth District Court of Appeals filed a decision that upheld the decision of the trial court regarding Slagle's case.
Slagle represented himself in the application to reopen the case.
The state was represented by Highland County Prosecutor Anneka Collins.
According to the decision filed by the court of appeals last week, Slagle filed an application to reopen his case in May 2011. Slagle alleged ineffective assistance from counsel in his appeal and submitted five assignments of error. Slagle alleged his council "refused and neglected to raise the issue of the expiration of the statute of limitations" relating to count one of the indictment; that the court did not comply with the Ohio Revised Code, sentencing him to prison when other similar cases did not have prison sentences; "whether or not the state of Ohio failed and refused to follow the clear mandate section 2929.19(B)(6) of the Ohio Revised Code;" "whether or not the jury verdicts were inconsistent;" and that "the trial court failed to follow the mandatory dictate of section 2929.41(A)" of the ORC.
Regarding the first assignment of error, Slagle alleged that the statute of limitation on count one, theft, of the indictment had expired 18 months before his April 2009 indictment. The ORC states that prosecution must take place within six years after that felony offense. The theft offense had allegedly occurred in July 2001. The state argued that Slagle's "conduct was not discovered until 2008, and thus falls within and exception by the statute" and that the ORC provides that when an offense occurs as part of a continuing course of conduction, "the period of limitation does not begin to run until such course of conduct or the accused's accountability for it terminates."
According to the appeal, Slagle was "an attorney and fiduciary in relation to the victim in count one," a special needs trust.
"In support of its argument, the state contends (Slagle) went to great lengths in 'covering up' the corpus delicti (body of crime) of his criminal activity, explaining that the disciplinary counsel (of the Supreme Court of Ohio) was the first organizational representation to realize (Slagle) may have been mishandling funds, which led to a report to law enforcement in December 2008. Although (Slagle) contends that the exhibit attached in support of his application purports to demonstrate that the state had knowledge of his crimes as early as 2002 ... the exhibit was not made part of the record ... and is now property before us on appeal," the court wrote in the decision. "As such, and based upon a review of the record, it appears that the state did not discover (Slagle's) criminal conduct until 2008 ... the statute did not begin to run until that time and (Slagle's) April 7, 2009 indictment was timely filed."
The court stated that Slagle "failed to demonstrate that he was prejudiced by appellate counsel's failure to assign this error for review."
The second and fifth assignments of error were addressed together.
"Despite (Slagle's) contention that his appellate counsel failed to challenge the trial court's decision to impose non-minimum, consecutive rather than concurrent sentences, our review of the record reveals that appellate counsel did, in fact, challenge the trial court's imposition of non-minimum, consecutive sentences, which resulted in a cumulative sentence of 10 years ... We determined that (Slagle's) combined sentence of 10 years was within the statutory range, was not clearly and convincingly contrary to law and was not an abuse of discretion by the trial court. Further, we specifically cited language in the record wherein the trial court explained its reasons for imposing the sentences it did, which related to (Slagle's) lack of explanation and remorse for his actions, coupled with the fact that (Slagle) held a public trust. Thus, because these issues were raised and addressed on direct appeal, (Slagle) has failed to demonstrate any error the part of his appellate counsel."
Regarding the third assignment of error, which alleges his counsel provided ineffective assistance regarding a failure to assign an error on director appeal on an ORC mandate that "requires the court to consider the offender's ability to pay the amount of the sanction or fine. (Slagle) contends there 'is no evidence whatsoever that the court did anything to comply with this mandate and then fined (Slagle) thousands of dollars knowing full well (Slagle) was and is indigent."
The appellate court found that the court did not abuse its discretion in imposing the fines. The trial court stated that it had considered the record and the pre-sentence investigation report out of Montgomery County, but that contained no information on Slagle's income or assets. It did summarize the charges in Montgomery County "which alleged (Slagle) had stolen $780,000 from the law firm that employed him." Slagle's finances were also "much-discussed" in sentencing, according to the appellate court, which included information that Slagle had "dower interest" in two separate properties approximately worth $75,000 and $86,000. The court found that the trial court was aware of Slagle's financial situation and had examined his current and future ability to pay when it imposed financial sanctions against him.
In the fourth assignment of error, regarding the allegation that the jury verdicts were "inconsistent," the court stated that Slagle did not argue how the verdict was inconsistent "or which jury verdicts were inconsistent."
In conclusion, the court of appeals wrote that, "We cannot conclude that appellate counsel was ineffective for failing to assign as error on appeal issues which would not have been found to be meritorious. The process of winnowing out weaker arguments such as these from appeal and focusing on those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.
"After our review of the foregoing, we find no genuine issue concerning counsel's ineffectiveness ... The request to reopen (Slagle's) appeal is without merit, and his application is hereby denied."
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