State v. Hamann

• Decision Date: 07 July 1993
• Docket Number: 62689,Nos. 62652,s. 62652
• Citation: 90 Ohio App.3d 654,630 N.E.2d 384
• Parties: The STATE of Ohio, Appellee, v. HAMANN, Appellant. *
• Court: Ohio Court of Appeals

Page 654

90 Ohio App.3d 654

630 N.E.2d 384

The STATE of Ohio, Appellee, v. HAMANN, Appellant. ^*

Nos. 62652, 62689.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided July 7, 1993.

Stephanie Tubbs Jones, Cuyahoga County Pros. Atty., and Paul M. Soucie, Asst. Pros. Atty., for appellee.

John B. Gibbons, Cleveland, for appellant.

KRUPANSKY, Judge.

Defendant-appellant William A. Hamann, Jr. appeals from sentences imposed by the common pleas court following his guilty pleas to thirty-eight counts of theft, forgery and uttering in two separate criminal cases. Defendant committed the crimes involving more than $2,470,000 against various trusts, estates, guardianships and financial institutions in the course of administering probate accounts over a seven-year period while a practicing attorney. The nature and extent of defendant's looting of funds entrusted to him came to light after investigations of bank fraud, false federal estate tax returns and forgery of probate court documents conducted by the Federal Bureau of Investigation and the probate court in March 1991.

Defendant was indicted by the Cuyahoga County Grand Jury in the first criminal case, case No. CR-265744, April 12, 1991 on the following five felony charges, viz.: (1) forging an Appointment of Administrator form with the names of a probate judge and court clerk to appoint himself as administrator for the estate of Jean E. Popp in violation of R.C. 2913.31(A)(2); (2) uttering the same Appointment of Administrator form to Cuyahoga Savings in violation of R.C. 2913.31(A)(3); (3) forging an estate tax release form with the name of the state of Ohio Tax Commissioner for the same estate in the amount of $23,437.17 in violation of R.C. 2913.31(A)(2); (4) uttering the same tax release form to Cuyahoga Savings in violation of R.C. 2913.31(A)(3); (5) grand theft of property or services from Cuyahoga Savings with a value of at least $5,000 in violation of R.C. 2913.02.

After further investigation defendant was charged by information in the second case, case No. CR-271171, August 29, 1991 on thirty additional counts of theft in the total amount of $2,373,786.67, two additional counts of forgery and two additional counts of uttering. The information alleged defendant committed the crimes over the course of a seven-year period from November 1983 to April 1991. The thirty theft counts perpetrated against his clients and others in violation of R.C. 2913.02 ranged from second degree felonies to a first degree misdemeanor based on the amounts stolen as follows:

(A) from the following trusts, to wit:

(1) Lillian M. Otto, $181,525.64, (2) Olga A. Mikell, $219,597.52, (3) for the benefit of Ralph A. Abe, $152,460.74;

(B) from the following estates, to wit:

(4) Bertha S. Herdman, $22,743.99, (5) Mable J. Rowe, $5,899.55, (6) Gertrude V. Haren, $109,183.86, (7) Josephine Francis, $38,800.42, (8) Helen P. Smith, $6,650.95, (9) Bertram Jagielky, $13,914.87, (10) Ruth L. Deisman, $490,207.99, (11) Doris O'Boyle, $121,977.40, (12) Edward R. Rinaldi, $60,000;

(C) from the following guardianships, to wit:

(13) Bertram Jagielky, incompetent, $77,102.53, (14) Cassandra Ann Bowden and John Arthur Bowden, minor, $36,231.26 D) from the following financial institutions, to wit:

(15) Ohio Savings Bank, $55,833.81, (16) First Federal Bank, $37,536.15, (17-19) First Federal Savings and Loan, $100,038.90, $105.52 and $68,161.35, (20-26) Third Federal Savings and Loan Association of Cleveland, $15,276.26, $23,703.56, $48,064.10, $15,649.86, $99,892.87, $479.60 and $1,262.37, (27-28) Cardinal Federal Savings Bank, $38,266.44 and $16,955.65; and

(E) from the following individuals, to wit:

(29-30) Anne Cleary, individually and as trustee, $96,313.28 and $219,950.23.

The information also charged defendant with two counts each of forgery and uttering against Anne Cleary and the estate of Edward R. Rinaldi.

Defendant waived formal indictment in case No. CR-271171 during a hearing on August 30, 1991 and subsequently entered pleas of guilty on September 9, 1991 to all counts in both cases, except for the count of theft in the amount of $60,000 from the estate of Edward R. Rinaldi, which was nolled. Defendant was advised of the potential penalties applicable to his offenses in each case and acknowledged when entering his guilty pleas that the prosecution made no promises concerning his potential punishment. The trial court thereafter journalized defendant's guilty pleas in both cases, ordered a Crim.R. 32.2 presentence report pursuant to defendant's request and scheduled sentencing for October 3, 1991. Defendant filed a presentence memorandum with the trial court on October 2, 1991, supported by the following documents, viz.: (1) a financial exhibit purporting to summarize defendant's use of funds for the three-year period from January 1988 to December 1991, and (2) eight letters from various family members and friends requesting leniency in sentencing.

Defendant, his wife, two victims and counsel for a third victim made statements to the trial court during the October 3, 1991 sentencing hearing. Defendant admittedly completed thousands of transactions involving approximately $15,000,000 in various probate and mortgage servicing accounts at several financial institutions from 1988 to 1991. The prosecutor acknowledged defendant's cooperation with the investigation but stated that based upon a review of bank records at five financial institutions he was unable to determine whether a complete accounting of all the stolen funds had been made.

On the federal charges, an assistant U.S. attorney prosecuting defendant on related federal bank fraud and false federal estate tax charges stated on defendant's behalf pursuant to a plea agreement in federal court that the FBI found no missing funds from the two defendant's bank accounts investigated. The assistant U.S. attorney stated it was "a reasonable conclusion" the stolen funds had been spent and he was unable to locate any additional "sources of funds in accounts at a range of financial institutions."

Following the hearing, the trial court sentenced defendant in case No. CR-271171 to the following sentences on the twenty-nine theft counts, viz.: (1) indefinite terms of five to fifteen years and a $5,000 fine on each of the eight second-degree felony theft convictions involving more than $100,000; (2) two years and a $5,000 fine on fifteen of the eighteen third-degree felony theft convictions involving more than $5,000 but less than $100,000, and one and one-half years and a $2,500 fine on the three remaining third-degree felony theft convictions; (3) one and one-half years and a $2,500 fine on each of the two fourth-degree felony theft convictions involving more than $300 but less than $5,000; and (4) six months on the one first-degree misdemeanor theft conviction involving less than $300. The trial court sentenced defendant to sentences of eighteen months' imprisonment and a $2,500 fine on each of the two forgery convictions and each of the two uttering convictions. The trial court ordered all sentences to be served consecutively except for the six-month sentence on the misdemeanor theft conviction. The trial court's October 9, 1991 sentencing order in case No. CR-271171 concluded as follows:

"Total maximum term of incarceration of 84 years to 120 years & fines of $150,000; pursuant to R.C. 2929.41E [sic ] will be limited to aggregate minimum term of 15 years to Lorain Correctional Institution, full restitution to all victims; consecutive to CR-265744."

The trial court thereafter sentenced defendant in case No. CR-265744 to the following consecutive sentences, viz.: (1) eighteen months and a $2,500 fine on each of the two forgery counts; (2) eighteen months and a $2,500 fine on each of the two uttering counts; and (3) five to fifteen years and a $7,500 fine on the second-degree felony theft count. The trial court's sentencing order in case No. CR-265744, journalized October 10, 1991, concluded as follows:

"Total 11 years to 15 years at Lorain Correctional Institution & fines of $17,500.00, consecutive to CR-271171. Incarceration time suspended to provide incentive for full restitution & assure the Court that there are no hidden funds; 5 years probation to be served while incarcerated. Full restitution & payment of all fines to be determined by Probation Department in conjunction with FBI, State of Ohio, & Probate Court. Failure to make restitution & pay all fines will result in original sentence being imposed consecutive to CR-271171."

Defendant filed timely notices of appeal from the sentences imposed by the trial court in case Nos. CR-265744 and CR-271171. The court of appeals assigned case Nos. 62652 and 62689 to these appeals, respectively. This court thereafter granted defendant's motion to consolidate the two appeals which jointly raise eight assignments of error.

Defendant's first assignment of error follows:

"The trial court abused its sentencing discretion in not considering the mandatory factors set forth in R.C. 2929.12(A) and imposing an excessive sentence."

Defendant's first assignment of error lacks merit.

Defendant contends the trial court erred by failing to consider the statutory factors set forth in R.C. 2929.12(A) prior to imposing the maximum five-year minimum indefinite sentence on him in connection with each of his eight second-degree felony convictions in the two cases sub judice. R.C. 2929.11(B)(5) establishes the following range of indefinite sentences for these offenses as follows:

"For a felony of the second degree, the minimum term shall be two, three, four, or five years, and the maximum term shall be fifteen years."

R.C. 2929.12(A) governs the trial court's discretion concerning the minimum term of an indefinite sentence within this range and provides as follows:

"(A) In determining the minimum term of imprisonment to be imposed for a felony for which an indefinite...