State v. Anne D. Deblanco, M.D.

• Decision Date: 14 July 1998
• Docket Number: 97APA08-1049,98-LW-3467
• Parties: State of Ohio, Plaintiff-Appellee, v. Anne D. DeBlanco, M.D., Defendant-Appellant
• Court: Ohio Court of Appeals

State of Ohio, Plaintiff-Appellee, v. Anne D. DeBlanco, M.D., Defendant-Appellant

No. 97APA08-1049

98-LW-3467 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

July 14, 1998

APPEAL from the Franklin County Court of Common Pleas.

Betty D. Montgomery, Attorney General, and Constance A. Nearhood for appellee.

O'Meara Law Office, and Steven A. Struhar, for appellant.

OPINION

YOUNG J.

Appellant, Anne D. DeBlanco, M.D., appeals from a judgment of the Franklin County Court of Common Pleas denying appellee's petition for postconviction relief brought pursuant to R.C. 2953.21. In the underlying criminal action appellant, a physician, was convicted on one count of fraud, one count of theft and ten counts of forgery involving Medicaid insurance billing and reimbursement. She was sentenced to twelve concurrent one-year terms of incarceration, sentence suspended, and placed on two years' probation. As well, appellant paid restitution to the Ohio Department of Human Services ("ODHS") for the Medicaid payment received by her, pursuant to court order.

Appellant appealed her conviction on grounds that the trial court failed to suppress evidence upon her motion. The judgment of the trial court was affirmed by this court by a decision rendered July 30, 1991. Appellant filed her present petition for postconviction relief with the trial court on June 25, 1993. Appellant's petition asserting ineffective assistance of counsel was dismissed by decision and entry on April 14, 1994. Upon appeal, this court remanded the matter back to the trial court for an evidentiary hearing. On remand, the trial court referred the matter to a magistrate, whereupon an evidentiary hearing was held before said magistrate on September 29, 1995, with the magistrate's decision and entry denying appellant's petition filed on January 23, 1996 and the court's entry filed January 30, 1996.

Appellant filed her "Objections to the Magistrate's Report" on February 7, 1996, with a request that the trial court stay its decision regarding the magistrate's report until appellant filed a transcript of the hearing for the court's review. The trial court adopted the magistrate's decision by entry one day before the transcript was filed. Appellant appealed and this court remanded the matter to the trial court for a full review of the transcript.

After review of the transcript, the trial court issued findings of fact and conclusions of law regarding the hearing and appellant's claim of ineffective assistance of counsel. On July 22, 1997, the trial court denied appellant's petition for postconviction relief. This appeal followed.

Appellant asserts the following assignment of error:

"I. THE TRIAL COURT ERRED BY NOT VACATING AND SETTING ASIDE APPELLANT'S CRIMINAL CONVICTION AS PRAYED FOR IN HER POST CONVICTION PETITION."

Appellant asserts that she has demonstrated grounds sufficient to warrant granting her petition for postconviction relief pursuant to R.C. 2953.21. Primarily, appellant asserts that her trial counsel was ineffective for the following reasons: (a) defense counsel's strategy in electing not to have appellant testify denied appellant her constitutional right to testify on her behalf; (b) appellant's waiver of a jury trial, upon advice of counsel, deprived appellant of her constitutional right to a jury trial; (c) counsel misunderstood the law and facts and pursued an absurd theory of defense, and failed to properly investigate the case; (d) counsel failed to interview or subpoena exculpatory witnesses and character witnesses; (e) counsel failed to present expert witnesses to rebut appellee's experts; (f) counsel failed to conduct proper discovery and introduced exculpatory documentary evidence; and (g) counsel failed to properly consult with appellant on decisions regarding the case.

The provisions of R.C. 2953.21 in effect at the time of appellant's petition, provide in pertinent part:

"(A)(1) Any person who has been convicted of a criminal offense *** and who claims that there was such a denial or infringement of his rights as to render the judgment void or voidable *** may file a petition in the court that imposed sentence, *** asking the court to vacate or set aside the judgment or sentence ***.

"***

"(E) *** [T]he court shall proceed to a prompt hearing on the issues ***."

Further, a "petitioner shall be permitted to attend the hearing." R.C. 2953.22. An order denying relief sought is a "final judgment and may be appealed pursuant to Chapter 2953. of the Revised Code." R.C. 2953.23(B).

In the instant case, the trial court reviewed the record of the proceedings, including the transcript of the postconviction hearing before the magistrate, and determined that appellant's "motion for postconviction relief claiming ineffective assistance of counsel does not state grounds for relief." (Decision and entry, findings of fact and conclusions of law filed 7/22/97 at 5.) Appellant appeals the trial court's decision.

In reviewing the trial court's denial of appellant's petition for postconviction relief, this court is asked to determine whether the petition was reviewed in accordance with the provisions of R.C. 2953.21 and whether or not the court's decision was "supported by sufficient competent evidence." State v. Grossner (1966), 8 Ohio App.2d 68, 69. The appellate determination is based upon review of the record, to include a transcript of the hearing where appropriate. Id.

In order to establish a claim of ineffective assistance of trial counsel, a defendant must first demonstrate that counsel's performance fell below an objective standard or, in other words, was deficient. This requires a showing that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" of the United States Constitution. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. (1984), 2052. The defendant must next "show that the deficient performance prejudiced the defense." Id. See, also, State v. Goff (1998), 82 Ohio St.3d 123, 139. When a "convicted [felon] complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, at 687-688. See, also, State v. Lambrecht (1990), 69 Ohio App.3d 256. However, the trial court may not second guess counsel's assistance after conviction or adverse sentence. Strickland, at 689. A reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. "Judicial scrutiny of counsel's performance must be highly deferential. *** [T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689. The Strickland test is essentially the one adopted by the state of Ohio for determining claims of ineffective assistance of counsel. See State v. Martin (1987), 37 Ohio App.3d 213, 214. "A prisoner is entitled to postconviction relief under section 2953.21 et seq., Revised Code, only if the court can find that there was such a denial or infringement of the rights of the prisoner as to render the judgment void or voidable under the Ohio Constitution and United States Constitution." State v. Perry (1967), 10 Ohio St.2d 175, at paragraph four of the syllabus.

"'Only if it can be said that what was or was not done by the defendant's attorney for his client made the proceedings a farce and a mockery of justice, shocking the conscience of the court, can a charge of inadequate legal representation prevail. The fact that a different or better result may have been obtained by a different lawyer does not mean that the defendant has not had the effective assistance of counsel.'" State v. Cutcher (1969), 17 Ohio App.2d 107, 113.

Unless "it clearly appears that [counsel] is so incompetent, orconducted a defense so negligently and so incapably as to have denied his client the benefit of a fair trial and judicial determination, it may not be said that his client was denied the assistance of counsel or due process of law as contemplated by our Constitution." Kramer v. Alvis, Warden (1956), 103 Ohio App. 324, 338.

After a hearing and receiving evidence upon the matter, the magistrate reviewed appellant's allegations of ineffective assistance of counsel and adequately determined the following: (1) appellant voluntarily waived her rights to a jury trial after questioning on the issue by the trial judge (Tr. magistrate's hearing at 167-169); (2) that defense counsel's failure to make an opening statement after presenting its motion to suppress evidence to the court, cannot be faulted and can be seen as a legitimate trial tactic and, in fact, counsel's oral motion was in effect a statement of the case before the court (Tr. 9/4/89, Vol. I, 7-17); (3) the state's expert witnesses were not unknown or otherwise a surprise to appellant; (4) defense counsel's failure to call character or expert witnesses is not per se ineffective assistance of counsel (see State v. Sowell (1991), 73 Ohio App.3d 672, 680); (5) upon a review of the affidavit of a CPA who would have testified to the extent of the overpayment amount, the evidence presented was not persuasive that no crime had been committed even though the dollar amount could have been less, and the claim of ineffective assistance of counsel was without merit in this regard; (6) failure to permit appellant to testify at trial is not ineffective assistance of counsel, but may be considered trial strategy; (7) that while defense counsel may not have fully appreciated the extent of the information provided by the investigator, counsel did meet with the investigator on three...