State v. Phillips
| Decision Date | 10 September 2018 |
| Docket Number | Case No. 15 MA 0218 |
| Citation | 2018 Ohio 3732 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. LORETTA A. PHILLIPS, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
OPINION AND JUDGMENT ENTRY
Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio
BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT: Affirmed in part; Reversed in part and Remanded.
Atty. Rhys B. Cartwright-Jones, 42 N. Phelps Street, Youngstown, Ohio 44503 for Defendant-Appellant.
{¶1} Defendant-Appellant Loretta Phillips appeals after being convicted of aggravated theft and tampering with evidence in the Mahoning County Common Pleas Court. She argues her trial counsel rendered ineffective assistance of counsel by failing to conduct discovery regarding electronic evidence to show who was logged in during each billing in order to support her defense that she was not responsible for the improper Medicaid billing. She also contends her speedy trial rights were violated. Lastly, Appellant contests the imposition of consecutive sentences. For the following reasons, Appellant's verdicts are upheld, but the sentence is remanded due to insufficient consecutive sentence findings at the sentencing hearing.
{¶2} Appellant owned Solutions Counseling Center in Sebring. She was a counselor with plans to become a clinical psychologist. As a counselor, Appellant was not eligible to receive a provider number from the Ohio Department of Medicaid in order to directly seek reimbursement for rendering services to clients who used the traditional Medicaid option. (Under traditional Medicaid, a counselor had to work under the direct supervision of a physician; in addition, claims for the services of a counselor were to be coded and paid at a lesser rate than those of a physician or clinical psychologist.) Appellant could and did receive a reporting number to directly bill insurance companies of those clients who used Medicaid's managed care plan option.
{¶3} The state, represented by the Ohio Attorney General's Office, alleged four theft schemes: (1) under the provider number of a clinical psychologist who worked out of her business as an independent contractor, she billed and received from Medicaid nearly $87,000 for clients who were not treated by this provider; (2) she continued to bill (nearly $16,000) under his provider number after he resigned in April 2011; (3) she billed traditional Medicaid and its managed care plans for visits that never occurred (totaling nearly $81,000); and (4) under the provider number of a different clinical psychologist, who was considering a merger with her business in September 2012, she billed for clients who were not treated by this provider and received over $17,000 from a managed care plan (who had terminated her contract). In response to an April 23, 2013 grand jury subpoena, Appellant allegedly responded with falsified patient records.
{¶4} On October 15, 2013, Appellant was indicted in Franklin County on three third-degree felonies. The first two counts involved conduct occurring from January 2, 2008 to August 17, 2013 and related to claims billed for clients covered by Medicaid. The first count charged Appellant with aggravated theft and contained the following elements: with purpose to deprive the owner of property or services, knowingly obtaining or exerting control over either the property or services by deception. See R.C. 2913.02(A)(3), (B)(2) (a felony of the third degree where the value of the stolen property was $150,000 or more but less than $750,000). The second count charged Appellant with falsification in a theft offense for: knowingly making a false statement, or knowingly swearing or affirming the truth of a false statement previously made, when the statement is made with purpose to commit or facilitate the commission of a theft offense. See R.C 2921.13(A)(9), (F)(2) (a felony of the third degree where the value of the property was $150,000 or more). The third count charged the offense of tampering with evidence alleging: between April 23, 2013 and September 9, 2013, Appellant knew an official proceeding or investigation was in progress or was about to be or likely to be instituted and she made, presented, or used any record, document, or thing, knowing it to be false and with purpose to mislead a public official who may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation. See R.C. 2921.12(A)(2).
{¶5} On June 2, 2014, Appellant filed a motion to change venue to Mahoning County. The court in Franklin County found venue would be proper in either county and observed there were many witnesses from Mahoning County. On October 29, 2014, the motion to change venue was granted, and the case was transferred to Mahoning County. A May 2015 trial date was continued as the court had another trial. The matter was referred to a visiting judge, and the parties were instructed to file speedy trial time computations. The defense argued 311 days counted against the state at the time of the June 16, 2015 pretrial date, while the state argued only 92 days counted toward the speedy trial time of 270 days. On June 23, 2015, the court accepted the state's calculations and rejected the calculations of the defense.
{¶6} The jury trial commenced on October 26, 2015. The jury found Appellant guilty as charged. At sentencing, the court merged counts one and two. Appellant was then sentenced to 30 months on count one and 30 months on count three. The court ordered the sentences to run consecutively. Appellant filed a timely notice of appeal from the December 22, 2015 sentencing entry. Transcripts were filed containing 2,400 pages, and extensions were granted for briefing. Appellant's brief was filed in November 2017, and the state's brief was filed in February 2018.
ASSIGNMENT OF ERROR ONE: INEFFECTIVE ASSISTANCE
{¶7} Appellant's first assignment of error contends:
"Counsel's performance was deficient in violation of Phillips' Sixth and Fourteenth Amendment rights to effective assistance."
{¶8} Appellant believes her trial counsel failed to conduct electronic discovery or attempt a forensic analysis of her computer in order to ascertain who was logged in to the computer system at her business when the improper bills were generated in order to show who was responsible for the billing issues. Appellant concludes this failure to investigate and gather evidence could not be viewed as strategic and resulted in prejudice to her case where her defense turned on the theory that others were responsible for the billing problems and the system required a user name and password to generate the electronic documents.
{¶9} We review a claim of ineffective assistance of counsel under a two-part test, which 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). Both prongs must be established; there is no need to review for prejudice if the performance has not been demonstrated to be deficient, and vice versa. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶10} In evaluating the alleged deficiency in performance, our review is highly deferential to counsel's decision as there is a strong presumption counsel's conduct falls within the wide range of reasonable professional assistance. Bradley, 42 Ohio St.3d at 142-143. We 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). Instances of debatable trial strategy very rarely constitute ineffective assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987). There are "countless ways to provide effective assistance in any given case." Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 689.
{¶11} To show prejudice, a defendant must prove his lawyer's errors were so serious that there is a reasonable probability the result of the proceedings would have been different. Carter, 72 Ohio St.3d at 558. Lesser tests of prejudice have been rejected: "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Bradley, 42 Ohio St.3d 136 at fn. 1, quoting Strickland, 466 U.S. at 693. Prejudice from defective representation justifies reversal only where the results were unreliable or the proceeding fundamentally unfair due to the performance of trial counsel. Carter, 72 Ohio St.3d at 558, citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
{¶12} The state responds that counsel's trial tactic was to present Appellant's defense through cross-examination of the state's witnesses and presentation of its own witnesses, including Appellant who testified in her own defense. The state emphasizes that any decision to refrain from checking the credentials used for the thousands of bills over a long period could be considered strategic (for purposes of focus and time allocation) and lacking in prejudicial effect. The state points out: the case did not turn on who submitted each bill; the employees claimed Appellant directed them to bill for clients who were not on the schedule on the alleged day of service; there were allegations she caused bills to be issued under the code for a service to represent herbal supplements she was providing her clients that were not covered by...
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