IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

V.

DANIEL F. M:ONTCrOMER^.',

Defendant-Appellant.

4 ^q x

Jx.

On Appeal from theCuyahoga County Court ofAppeals, Eighth AppellateDistrict

Court of Appeals caseno. 99452

MEMORANDITM IN SUPPORT OF JURISDICTIONOF APPELLANT DANIEL F. MONTGOMERY

BARRY W. WILFORD (001:4891)SARAH A. SCHREGARDUS (0080932)Kura, Wilford & Schregardus Co., L.P.A.492 City Park AvenueColumbus, OH 43215(614) 628-0100

Counsel for Appellant

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MARY MCGRATH ( 0041381(SALEH AWADALLAH (0063422)Asst. Cuyahoga County Prosecuting AttorneyThe Justice Center1200 Ontario Street, 9`'' FloorCleveland, OH 44113(216) 443-7800

Counsel for Appellee

,CL`LR:a OF {.7 SyiJR^

^OKE€t^^ ^^Ufl € OF OHIO

TABLE OF CONTENTS

Statement of Why Leave Should be Granted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

Statement of the Case . . . . . . . . . . . . . ................................................ ..2

Statenaent of Facts . . . . . . . . . .............. ...,....................................3

Argument:

Proposition of Law I:

Judicial supervision is required before an attorney may disclose client communicationspursuant to the "self-protection" exception of the attorney-client privilege. R.C.2317.02(A); Squire,Sanders & Dempsey, LLP v. Givaudan Elavors Corp., 127 Ohio St.3d16.1, 2010-Ohio-4469, 937 N.E.2d 533; State v. Howard, 2°d Dist. Montgomery no. 8001,1984 LEXIS 8892 (Jan. 4, 1984).

............ ....... ......... 10

Proposition of Law II:

The doctrine of res judicata does not bar a post-sentencing motion to withdraw guilty pleabased upon exculpatory information unavailable to the defendant at the time of a previouslyfiled petition for post-conviction. Crim. R. 32.1; R.C. 2953.21; State v. Perry, 10 Ohio St.2d175, 226 N.E.2d 104 (1967). U.S. Const. amend V, VI and XIV.

..... ......... . .....13

Conclusion . . . . . . . . ...................... .......................................15

Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

Appendix:

State v. Daniel F. ^VontgomeNy, 8th Dist. Cuyahoga No. 99452, 2013-Ohio-4193 (Sept. 26, 2013)

I

WHY LEAVE SHOULD BE GRANTED

Among the law's oldest and most venerated privileges is that between a client and an

attorney. Subject to few exceptions and limitations, a person is encouraged by the law's promise of

confidentiality to fully disclose matters with his or her attorney. On the opposite side of the

spectrum is a defendant's claim of ineffective assistance of counsel based on fundamental

constitutional protections raised in postconviction or appellate proceedings. This case presents this

Court with the opportunity to address the crossroads between these two fundamentals: when a

defendant raises a claim of ineffective assistance of counsel, may the attorney wliose performance

is challenged unilaterally waive the attorney-client privilege without an order from the trial court

recognizing the "self-protection" exception to the privilege, thus authorizing the disclosure.

This appeal presents an audacious example of an attorney repudiating the attorney-ciient

privilege based upon the attorney's own volition, without an form of compulsion except the

attorney's own self-perceived self-interest in protecting his professional reputation. Appellant filed

a Motion to Withdraw Guilty Plea based on the failure of the attorney to disclose to him exculpatory

information that the attorney had received in discovery, claiming ineffective assistance of counsel.

Seven days later, Appellant's attorney executed an affidavit refuting the allegation, which was

provided to the State and submitted as an exhibit in the State's memorandum opposing the motion.

A motion by Appellant to strilce the attorney's affidavit based upon violation of R.C.

2317.02(A) was denied by the trial court without any hearing, and affirnyed on appeal, although for

different reasons than set forth by the trial court. The motion to withdraw the guilty plea was also

denied without an evidentiary hearing. Thus, because the attorney's affidavit was essential to the

dismissal of Appellant's motions without any hearing, Appellant was never provided an opportunity

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to challenge his attorney's attestations that the exculpatory materials had been disclosed to

Appellant.

The court below held that communications between Montgomery and his lawyer were

protected by the privilege, but that the privilege was waived by the mere filing of the motion to

witl7draw guilty plea with its allegation of ineffective assistance of counsel. The court's rationale

was ba:sed upon an "extension" of the "self-protection" exception to the privilege recognized by this

Court in civil litigation by a client against its attorney in Squire, Sanders &.befnpsey, LLP v.

Givaudan Flavors Corp. 127 Ohio St.3d 161, 2010-O.hio-4469, 937 N.E.2d 533. In doing so, the

court below noted that Ohio Prof. Cond. R. 1.6(b)(5) is silent upon whether judicial supervision is

a prerequisite for disclosing client information, and rejected the American Bar Association's Formal

Opinion 10-456 which recognizes that the "self-protection" exception to the privilege does not

authorize disclosure of communications without "judicial supervision of testimony or otherwise."

It is submitted that Ohio law needs clarification for attorneys to know whether they are

permitted to voluntarily disclose privileged coinmunzeations based upon their self-perception that

it is "reasonably necessary" to do so to protect their professional reputation, or whether such

disclosures must await aii opportunity for judicial supervision of the disclosure in order to protect

the client's rights to the privilege. This appeal affords the Court an important opportunity to

consider the protection afforded by the American Bar Association's Forrnal Opinion in interpreting

Ohio Prof. Cond. R. 1.6(b)(5) in defining the scope of privilege under R.C. 2317.02(A).

STATEMENT OF THE CASE

On February 11, 2003, Daniel Montgomery was capitally indicted on charges of Murder,

Aggravated Murder, two counts of Aggravated Arson and a firearm specification. On October 9,

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2003, the appellant entered a guilty plea to one count of Murder with a three-year firearm

specification, and. Aggravated Arson with a three-year firearm specification. The trial court imposed

the jointly recommended sentence of 24 years-Life imprisonment.

On December 9, 2003, Appellant sought leave to file a delayed appeal which was later

dismissed pursuant to Anders v. Calif'ornia, 386 U.S. 738 (1967). In November, 2006, Appellant

filed an application to reopen his appeal raising sentencing issues under State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, which application was granted. On February 7, 2008, the judgment of trial

court was affirmed. State v. .Montgonrerj; 8t't Dist. Case No. 92489, 2008-Ohio-443.

On July 7, 2011, Appellant filed a motion to withdraw his guilty plea claiming ineffective

assistance of counsel. The State responded with an opposing brief supported witli an exhibit

containing an affidavit from Appellant's trial counsel. Appellant filed a Reply Brief and a motion

to strike the affidavit of his trial counsel. On December 28, 2012, the trial court denied the motion

to strike, as well as the motion to withdraw the guilty plea.

An appeal was taken, and on September 26, 2013, the judgment of the trial court was

affirrned.

STATEMENT OF FACTS

(A) Facts surrounding the (3 fense and arrest of apl)ellant.

On Saturday monzinl;, December 7, 2002, 68 year-old Rev. William Gulas, a pastor

("Father Willy") at St. Stanislaus Church in Cleveland's Slavic Village, was shot and killed in the

church Rectory by an unknow-n assailant. Soon thereafter, a fire in the Rectory, presumably set by

the killer as a means to cover up the crime, resulted in an emergency call to the Cleveland Fire

Department, which responded and extinguished the fire and in the process discovered the badly

burned body of Rev. Gulas. The gunshot wound was unnoticed.

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The person who discovered the fire and called "911" was 37 y=ear-old Franciscan Brother

I)aniel Montgomery, a Rectory resident, who was at the scene when the fire depar-tment trucks

arrived. It was believed by police and fire off cials that Rev. Gulas and Montgomery were the only

persons in the Rectory at the time of the fire. Montgomery cooperated with Fire Dept. personnel and

Arson investigators while the fire was extinguished and afterwards. The Rectory was thereafter

secured as a crime scene, with windows boarded and doors locked, and a police cruiser at the scene.

Montgomery would remain in the company of church personnel the remainder of the day, sharing

dinner and temporary lodging at the parish convent with other displaced Rectory residents.

On the next day, following the last of the Sunday niorning masses, Arson investigators

appeared at St. Stani:slaus and requested Montgomery come to the police station to provide

further details regarding the events leading to the discovery of the fire. Montgomery agreed to the

request and came with his supervisor, Rev. Tom Luczak. Shortly after commencing with the

questioning of Montgomery, the Coroner's office notified police that Rev. Gulas had died from a

fatal single gunshot wound to the neck. Armed with this news, additional police personnel joined

what would become a marathon interrogation of Montgomery lasting eight hours.

The questioners perceived there were inconsistencies in Montgomery's oral and written

statements. Also, Montgomery could not account for fifteen minutes of time that preceded his

discovery of the fire. When asked if he had purchased a gun, Montgomery fiunbled through the

papers in his wallet supposedly looking for a receipt, although police noted there nothing similar to

a credit card receipt among the papers. When challenged again, Montgomery again put his head

down and asked for help. He thereafter related his sadness for his recent discharge as an intern at

St. Stanislaus and his anger over allegations of inappropriate behavior with students at the Catholic

school where he taught phonics.

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After expressing his remorse for the parishioners of the church for its loss, Montgomexy

related that he had purchased a.38 caliber snub nose revolver on Friday, December 6, 2002, at 4:00

p.m. from a male black employee of K & S Food Market at East 65" St. and Fleet Street, a location

suspected of criminal activities. The nex-t day, at 12:15 p.m., he went into Father Gulas' office and

stated "I can't fiacking take this anymore," and shot Rev, Gulas as he sat at his desk. Montgomery

related that he dropped the handgun, went into another office to obtain a red. candle lighter and

returned to Father Gulas' office and started some papers on fire. Montgomery related that after

setting the fire he returned to his room and may have fallen asleep when he was awakened by a

ringing telephone. Montgomery answered the call from a parishioner (Christine Benda) who needed

a telephone number. When Montgomery was unable to give her the telephone number she was

seeking, she told him that "Father Willy" would have it; Montgomery put the caller on "hold," and

walked to Rev. Gulas's office and during which he smelled smoke and then saw the flames.

Montgomery retrieved a fire extinguisher and tried to put the fire out. When unsuccessful, he ran

back to his room, informed the caller that he did not know the telephone number and hung up.

Then he called. "911" and reported the fire. Coatless, he went outside the rectory and met the fire

trucks as they arrived, and assisted them in entering the building.

After providing a written statement reilecting all of the above, Daniel Montgomery was

arrested and held at the county jail.

(B) Facts submitted by Appellant showing the confession was false:

When immediate and exhaustive successive searches by police and fire officials (with dogs)

of the secured crime scene produced no murder weapon, the police detectives went back on Monday

to question Montgomery fiirthei:, who claimed he actually had no memory of what he did with the

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gun, and that his mind was "blank to the details." Further searches by police, fire personnel and

church employees of the church, church grounds, and church vehicles parked in, the church garage

resulted in no discovery of the murder weapon.

Even more perplexing, the ensuing police investigation to corroborate the details of

Montgomery's confession soon discovered that Montgomery's description of acquiring the deadly

weapon was a complete fabrication. Police detectives went to the "K & S Food :VIart" and

interviewed the store owner, who stated the allegation that Montgomery purchased the gun from a

male black store employee was "totally false." He related that he did not have any African American

males in his employ, nor any dark-skinned men who could be confused as such. Finally, the store

owner related that there are video cameras throughout the store, and the videotape recordings were

all saved, and gave the detectives all of the recordings for viewing.

On December 12, 2002, the police were contacted by Dan Kane, the church secretary for St.

Stanislaus who was responsible for the church bingo money and petty cash. He reported that on the

day of the fire he had been permitted by CFD personnel to enter the rectory office area, and lie

observed the metal box that was used for storing the bingo money and petty cash was lying on the

floor, in an open condition, and that it appeared to be empty. Kane further reported that he had

counted the receipts on Tuesday, December 3, 2002, and there was exactly $1,600.00 in the box.

This box was described by Kane as a gold colored toolbox which was secured by a padlock, annd that

it was always kept in the rectory office safe.

No evidence ever surfaced in the police investigation to suspect that Montgomery had

committed a theft or had a motive for robbery. There was no evidence that he possessed the

combination to the safe, or a key to the padlock on the toolbox. 'I'here was no evidence of any cash

in Montgomery's actual or constructive possession, nor a reason or need by Montgomery for money.

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Like all officials in the Franciscan order, Montgomery had taken a vow of poverty, which vows

were renewed each year. ln short, there was no evidence linking Montgomery to the clear evidence

of a theft motive behind the murder.

Rev. Gulas had a Sprint cell phone, telephone no: (216)-798-8348. Several weeks after Rev.

Gulas was murdered, a parishioner was experiencing some sadness over the holidays, and had

called the late priest's cell phone with the understandable hope of hearing his friendly voice on the

phone's recorded voicemail greeting. Instead, she was startled when her call was answered by rap

music and the voice of a young black male. Confused, she immediately hung up. Shortly

thereafter, she received an incoming telephone call on her telephone: it was the young black male,

wanting to know who she was and who she was trying to reach. She immediately contacted church

officials, who contacted the police; when they called the number, they were met with rap music.

The police would soon obtain the Sprint monthly billing for December, 2002, and would

discover that, shortly after midnight on December 7, 2002, someone (presumably Rev. Gulas) used

the phone to check for recorded incoming voicemail messages. The phone then `vent "dark" (no

calls) for seven days. flowever, in the ensuing three weeks, a total of 812 telephone calls were made.

On January 7, 2003, police called the cell phone number. A person who falsely identified

himself to them; the real identity of turned out to be Terry Dobbins (MIB; age 22). Dobbins had

tllree previous crack trafficking convictions, one committed with a firearm, and another pending at

the time of this investigation which would send him back to prison forthe second time. Following

his release from prison on that charge, Dobbins was convicted of another crack drug charge, and was

the subject of a federal forfeiture action when $16,020.000 were seized from his rental car.

Dobbins claimed that he purchased the cell phone from his 12 year-old niece. The 13 year-old niece

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of I)obbins told police she had found the cell phone in an abandoned lot on Fuller Avenue (8914

Fuller Aventte is approximately 2 miles from St. Stanislaus Church). She sold the cell phone to her

16 year-old brother, Brandon Randle, for $10.

Brandon Randle thereafter left the cell phone in a rental car driven by his uncle Terry

Dobbins. [Brandon Randle would subsequently be convicted of possession of crack cocaine and rape

of a 12 year-old girl, and sentenced to prison.] There was circumstantial information that Randle was

involved in the drug dealing activities of his uncle Terry Dobbins.

The police investigation also determined that on the evening of December 6, 2002, Rev.

Gulas attended a social event with several parishioners from which they had arrived home after

midnight after dropping off Rev. Gulas at the rectory.

In none of written or oral statements given by Montgomery to the police did he

describe any physical struggle with Rev. C^ulas at the time of the shooting. However, the coroner's

autopsy determined that there were external and internal injuries of the victim associated with

"blunt impact to the head," noting a left frontal scalp laceration, and internal acute brain hemorrhage

associated with the head wound.

The eight hour interrogation was not subject to any audio or video recording by any of the

police officials. One written statement by Montgomery, taken on December 8, 2002 at 4:00 p.m. was

this handwritten and signed statement:

"I can remember the fire starting before 12:00. 1 do not rememberleaving the rectory so V4Tilly's office or my office on the second floorwould be the most likely places to look for a gun. Everything elseseems like an out-of-body experience. Like part of'nze was up in mysecond floor office, and part of me on the first floor. .NlayUe apsychiatrist with a specialty in hypnntherapy or suppressedmemories could help me put these memories together. I have no

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recollection or a total suppression of memories involving a gun.Alalvbe some work with psychiatrist could me recall the memories.I'm trying , but T_just don't think I can go any further right now."

(emphasis added)

The cell phone records of Rev. Gulas' including those of the night before the murder and

weeks afterwards were included in supplemental discovery provided by the State to Appellant's trial

counsel on September 25, 2003. The records were not marked as exculpatory evidence, and the

supplemental discovery did not include any naines and addresses of the drug offenders that the

police had connected to using the cell phone or the persons involved in its discovery two miles

from the rectory a week after the murder.

In March 2010, John Martin, an investigative reporter for the Philadelphia Inquirer visited

with Appellant at the North Central Correctional Institution in Marion, Ohio. In the course of that

interview, John Martin disclosed to Appellant the cellular telephone records of Rev. Gulas which

he had obtained pursuant to a public records request from the Cleveland Police Department, and also

shared the information obtained from police records of the cell phone's usage by drug offenders,

and the circLunstances of its being found miles from the rectory a week after the murdero From that

interview, and additional interviews, John Martin authored a 10,000 word, four-piece series

questioning Appellant's guilt, in the I'hilczdelphia Tnquirer that were submitted as Defendant

Exhibits (Exhibit 40-A; 40-B; 40-C & 40-D) appended to Defendant's Reply Brief submitted

in the trial court proceedings along with Appellant's affidavit that the cell phone records and

circumstances of its discovery had never been disclosed to him prior to the prison visit by John

Martin.

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Proposition of Law I;

Judicial supervision is required before an attorney may disclose clientcommunications pursuant to the "self-protection" exception of theattorney-client privilege. R.C. 2317.02(A); Squire,Sanders &Dempsey, LLP v. Givaudan Flavors Corp., 127 Ohio St.3d 161,2010-Ohio-4469, 937 N.F.2d 533; State v. Howard, 2d Dist.Montgomery no. 8001, 1984 LEXIS 8892 (Jan. 4, 1984).

Following Appellant's filing the motion to withdraw his guilty plea which averred that the

cell phone records of Rev. Gulas and circumstances attendant to its recovery and usage by drug

offenders had not been disclosed to him prior to entering his guilty plea, the State responded with

an affidavit from Montgomery's trial counsel which stated that the he had received and reviewed

with Appellant all of the evidence described in Appellant's motion before Appellant entered his

guilty plea. State Exhibit 9 to State's Brief in Opposition to Motion to Withdraw Guilty Plea.

Appellant moved to strike this affidavit as it violated the attorney-client privilege. The trial court

denied the Motion to Strike finding:

"Affiant avers that the above stated information was discussed with Montgomeryprior to the entry of his guilty pleas. The privilege between attorneys and clientsprotects the specific communications between attorneys and their clients. The factthat Affiant states tlxat the communications occurred does not violate the attorney-client privilege."

On appeal, the court below found that the trial court had "incorrectly" deemed that the

contents of the attorney's affidavit did not relate to communications between attorney and client,

holding that "by stating that he discussed the subject matter of the affidavit with [Appellant], the

trial attorney testified (by sworn affidavit) to attorney-client communications." 1-lowever, the court

below affirmed the judgment of the trial court by finding that an exception to the attorney-client

privilege, the "self-protection exception," applied to the facts of the case, and justified the attorney's

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disclosure of client communications. State v. Montgomery, 8`" I)istrict Cuyahoga no 99452, 2013-

Ohio-4193 (Sept. 26, 2013) (at 7 22 & 23).

This finding and its accompanying rationale is erroneous and based on mis-reading of Ohio

legal precedent. The attorney-client privilege is founded in both Ohio statute and the common law

based on a profound societal. interest in encouraging clients to provide full and honest information

to their lawyers. Ohio law prohibits the disclosure by an attorney of client comrnunications. R.C.

2317.02(A), which provides:

The following persons shall not testify in certain respects: An attorney, concerninga communication made to the attorney by a client in that relation or the attorney'sadvice to a client, except that the attoniey may testify by express consent of thecl'zent[ ....] However, if the client voluntarily testifies or is deemed by section2151.421 [2151.42.1 ] of the Revised Code to have waived any testimonial privilegeunder this division, the attorney may be compelled to testify on the same subject[...]

This Court has clarified this statute: "Revised Code § 2317.02(A) provides the exclusive

means by which privileged communications directly between an attorney and a client can be

waived." State v. McDermott, 72 Ohio St. 3d 570, 651 N.E.2d 985 (1995).

Nevertheless, the court below crafted an analytical course which required an "extension" of

the holding of this Court in Squire, Sanders &Demsey, supra, that a common law "self protection"

exception to the privilege applies when civil litigation is brought by a client against the attorney.

In actuality, the court below endorsed two extensions of Squire, Sanders: (1) extending the holding

of Squire, Sanders from a civil case to a criminal case, which this Court might find arguable; and

(2) dispensing the need for judicial supervision of the disclosure of privileged communications by

the attorney before it is made to assure that applicability of the exception to the privilege is

warranted by the facts and to protect the client's right to the privilege, which this Court should not.

The court below failed to grasp the important procedural foundation of Squire, Sanders: it

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was an interlocutory appeal of a trial judge's order requiring the client to disclose the attorney-client

cornniunicati ons:

"Sqture Sanders moved to compel the production of documents and testimony fxoanboth King and Garfinkel, relying on the self-protection. exception to the attorney-client privilege and the work-product doctrine. The trial court granted the motion.

Squire, .S'anders atT 9

Likewise, the court below failed to appreciate the significance of the procedural framework

in the only other Ohio case authority cited in behalf of its holding: State v. Iloward, 2°d District

Montgomery no. 8001, 1984 LEXIS 8892 (Jan. 4, 1984), In Howard, the defendant had filed a

postconviction action alleging ineffective assistance of counsel. In a hearing on the petition, the trial

court ordered the defendant's former trial attorney to testify regarding tactical decisions made in. the

course of representing the defendant, and that the defendant had admitted to him that he had

committed the crime. The appeal was therefore in the same procedural posture as Squire Sanders:

an appeal of an order of a court which authorized the disclosure of the otherwise privileged

information. And it is this mis-reading of Howard to which the court below entitles as the "Ohio

rule." SupraatT, 29.

Appellant submits that neither of the holdings of Squire Sanders nor Howard support the

holding of the court below to approve the diselosure by the attorney of confidential communications

of the client without any prior judicial supervision or authorization. Instead, both cases stand

squarely in support of the proposition of law advanced by Appellant: that an attorney does not

determine whether the self-protection exception to the attomey-client privilege warrants the

disclosure of his former client's confidences, subject to only after-the-fact judicial review.

Approving this proposition is consistent witli the Ohio Rules of Professional Conduct.

While Prof. C. R. 1.6 does not state explicitly that judicial supervision is required prior to the

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disclosure of confidential information by the attorney, in subsection (b)(5) it is stated that

disclosure by an attorney is warranted "to respond to allegations in unyproceeding.s, including a

disciplinary matter, concerning the lawyer's representation of the client." (emphasis supplied). It is

submitted that "in any proceeding" should be interpreted to mean in any "legal proceeding," such

as a hearing, deposition or trial, each of which reqtiire a judicial officer with the authority to compel

or prohibit the disclosure of confidential information. This interpretation is fiu-.ther consistent to the

Comments following Prof. C.R. 1.6, which recognize disclosure may be warranted, such as where

"other law may require disclosure" (Comment #12), or where ordered by "a court or by another

tribu.nal or governmental entity." (Comment #13).

The implicit requirement under Prof. C.R. 1.6(b)(5) of an attorney obtaining "judicial

supervision" prior to disclosure of privileged information under the self-protection exception is also

consistent with the Rule's "Comparison to ABA Model Rules of Professional Conduct," of which

it is noted that Rule 1.6(b)(5) differs only as it adds "`disciplinary matter' "to clarify the application

of the exception." Significantly, the ABA rtile has been subject to a formal opinion that in a post-

conviction setting, it is highly unlikely that a disclosure in response to a prosecution request, prior

to a court-supervised response by way of testimony or otherwise, will be justifiable." ABA Formal

Opinion 10-456. Although the court below may be correct in. its observation that "provisions of the

Rules of Professional Conduct have no bearing on the admissibility of evidence" (supra at ^,,' 36)

(emphasis in original), as a conceptual m_atter it seems advisable that the interpretation given. to

scope of the privilege set forth in R.C. 2317.02(A), be reconcilable rArith the provisions of the

1'rofessional Ruules of Conduct to which legal practitioners must comply and which tribunals must

enforce. Certainly, the Court in deciding Squire Sanders thought it was important to note and

analyze how its decision "comports" with the Professional Conduct Rules. Supra, atTI149-52.

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This Court shotild be concerned with the danger created by the "Ohio rule" as announced by

the court below. It stands in conflict with the Ohio judicial precedents upon which it cites as

authority in support, and stands in defiance of the policy protections upon which the attorney-client

privileged relationship is founded. It also provides encouragement for repeated instances of

unprofessional conduct in the future by Ohio laxv practitioners, as in this case.

Pronosition of Law II:

The doctrine of res judicata does not bar a post-sentencing motion to withdraw giiiltyplea based upon exculpatory information unavailable to the defendant at the time ofa previously filed petition for post-conviction. Crim. R. 32.1; R.C. 2953.21; Statev. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). U.S. Const. amend V, Vl andXIV.

The court below held that Appellant "could ... have been raised in his 2006 petition for

postconviction relief." Supra, at T.- 44. Appellant concedes that the facts presented in his motion for

postconviction relief related to the events in 2003 and 2004. Many of the facts documented in the

motion to withdraw guilty plea were presented to provide the backdrop to his central claim of actual

innocense, which necessarily requires showing that his confession was false. (E.g., the unrecovered

gun; opened lockbox; blunt force head trauma of the victim). However, the critical evidence which

brings all the other questions into sharp focus was the exculpatory information regarding the cell

phone; not just the cell phone records, but most critically of all: how did the victim's cell phone

leave the rectory between 12:38 a.m. on December 7, 2002, when the victim was in the rectory and

checking his voicemail messages, and approximately noon the next day when the victim was killed

and the fire started ? And how did the cell phone get approximately two miles from the rectory,

where it was found ? And how did drug offenders obtain possession of the cell phone and commence

using it ? These were questions arising from information that the State never provided in discovery,

and which the cell phone records themselves, which the State did provide in discovery, cannot

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answer. The exculpatory nature of this information is not in issue: it is the only reason that the State

belatedly provided the cell phone records in discovery.

The most defmitive proof that Appellant did not have this information in 2006 when he filed

a petition for post-conviction relief is that he did not raise this dynamic exculpatory evidence.

There is no doubt that the investigative reporter for the Philadelphia Incluirer did publish a

four-part story of this case in June, 2011, and in it he describes meeting Appellant at his prison,

disclosing the cell phone records and being told by Appellant that he had never known of the before.

Therefore, there is strotig corroboration for Appellant's affidavit as to learning of this exculpatory

evidence from the reporter in March, 2010.

Res judicata only bars a claim that "could have been rczise " previously. ^S'tate v. Perry, supra

syllabus ¶9 (emphasis in original). You can only raise what you know. The State did not provide

the critical information regarding recoveiy and location of the cell phone, but only the cell phone

records themselves which were insufficient to place the cell phone outside the rectozy. Therefore,

Appellant cannot be charged with that knowledge.

CONCLUSION

This Court should grant leave to hear this case, reverse the judgment of the Court below, and

remand for further proceedings with the judgment of this Court.

RespectfUlly submitted,

BARR W. WILFORDSARAH M. SCHREGARDUSCounsel for Appellant

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PROOF OF SERVICE

A copy of the foregoing Memorandum in Support of Jurisdiction was forwarded by first class

U.S Postal Service mail to Mary FJ. McGath and Saleh S. Awadallah, Assistant Prosecuting

Attorn.eys, at the Cuyahoga County Prosecuting Attorney, The Justice Center, 1200 Ontario Street,

8"' Floor, Cleveland, OH 44113, this 12r' day of November, 2013.

BARR W. WILFOIRDCounsel for Appellant

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(,ourt of ppeaL!6 of jioEIGHTH APPELLATE DISTRICT

COUNTY OF CliYAHUGA

JOURNAL ENTRY AND OPINIONNoa 99452

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DANIEL F. MONTGOMERY

DEFENDANT-APPELLANT

^-;

JUDGMENT:.A.FFTRNTED

Criiniiial Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-433325

^^FORE4 Stewart;.A..J., Jones, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZEDo September 26, 2013

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-1-

A.TTORNEYS FOR APPELLANT

Barry W. WilfordSarah M. SchregardusKuras, Wilford & Schregardus Co.; L.P.A.492 City Park AvenueColunibus; OH 43215

ATTORNEYS FOR APPELLEE

Timothy J. McGintyCuyahoga County Prosecutor

BY: Mary H. McGrathSaleh S. Awadallah

Assistant County ProsecutorsThe Justice Center

1200 Ontario Street. 8th Floor.Cleveland, OH 44113

FILED AND JOURNAU{ZEDPER APP,R, 22{C}

2 6 i0i3

CUY D^VNT CLERK

OF T^ ^.^6T^^{! PEIMLS8y

Dep

MELODY J. STEA'ART, A.J.:

J¶J) In 2003, defendant-appellant I)aniel Montgomery,' who was

assigned to work at St. Stanislaus Church in Cleveland, confessed to murdering

the church's pastor, Reverend William Gulas, and setting fire to the parish.

rectory in order to cover up the murder. To av oid. a possible death penalty, he

pleaded guilty to murder and arson. He now seeks to withdraw that plea,

claiming that he entered the plea under duress and unaware that his attorney

knew of the existence of exculpatory evidence. When one of his trial attorneys

filed an affidavit contradicting the claim that counsel failed to inform

Montgomery about. potential exculpatory evidence, Montgomery asked the court

to strike the affidavit on grounds that it divulged privileged attorney-client

co-rninunications. 'l.'he court denied the motion to strike and then denied the

motion to withdraw the guilty plea on grounds that inost of the claims raised

were res judicata because they could have been raised in earlier proceedings.

1¶21 We find that the court correctly refused to strike the affidavit, but

for different reasons than those given by the court - by raising an ineffective

assistance of counsel claim in postconviction proceedings; Montgomery waived

the attor. ney-client privilege, We also agree with the court that issues raised irs

'Montgomery was ki-iown as "Brother Dan." The record indicates that he isreferred to as a Brother in the Franciscan order of priests, a Friar, and a formationstudent in the order.

the motion to withdraw the guilty plea, even those that claimed actual

innocence, could have been raised in earlier proceedings and were res judicata.

We thus affirm the court's refusal to permit Montgomery to withdraw his guilty

plea.

I

^¶3) Montgomery was assigned to St. Stanislaus as a tutor in the church

school. In December 2002, he received a 12:30 p.m. telephone call from a

parishioner and went to the pastor's office to get a telephone number. As he

entered the office, he saw smoke and flames. He went back to his room and told

the caller that he did not know the number. He then called 911 to report a fire.

Montgomery remained on the scene to console parishioners and pray for the

safety of the pastor, who could not be located. As firefighters put out the fire,

they discovered the pastor's body in the rectory office.

1^41 The day after the fire, the police questioned Montgomery as part of

an arson investigation. That questioning did riot go well. The police found it

odd that Montgomery was unable to say what he had been doing in the 15

minutes before he discovered the fire. He recalled with clarity events outside

that frame of tiine on the day of the fire, but claimed to have no memory of his

activities immediately before he entered the church office. As the questioning

continued, the police were infornzed that the coroner had determined that the

pastor did not die as a result of the fire, but had instead died from a gunshot

wound to the neck.

I ¶5) Now that they were i_nvestigating a murder, the police accused

Montgomery of being less than truthful with his responses regarding his

whereabouts before he reported the fire. Montgomery put his head down and

said that he needed help. The police asked him if he owned a gun., and

Montgomery begax: searching his wallet to show the police a receipt for a gun.

There was no receipt. The police again told Montgomery that he was not being

truthful about his activities in the 15 iizinutes before he claimed to have

discovered the fire. Montgomery again put his head down and said that he

needed help.

111 1 61 Montgomery told the police that his career as a Franciscan was

unraveling. He had been accused by some students of inappropriately touching

them, been banned from the church school, and was being transferred to an

Indiana friary where he would work in a home for retired Franciscan clergy.

"Sad and angry" over these orders, he wanted to "hurt someone." On the day

before the fire, he said he went to a local convenience store that supposedly

nlaintained a drug trade and purchased a loaded handgun from the clerk at the

counter.

{^,! 71 The following day, at 12:15 p.m., Montgomery took liis gun to the

pastor's office. The pastor was sitting at his desk. Montgomery told the pastor,

'`I can't fucking take this anymore" and fired a single shot. He claimed to see

blood streaming down the pastor's chest. IVlon.tgomery dropped. the gun, found

a lighter, and set fire to some papers in the office. He then returned to his room

and fell asleep, only to be awakened by the parishioner's telephone call. The

caller requested a telephone nuznber that the pastor would know, so

Montgomery went to -the pastor's office and discovered the fire. He then called

911 to report the fire.

{¶8) The state charged Montgomery with felony murder and aggravated

arson. In October 2003, he pleaded guilty to murder and arson with an agreed

sentence of life with parole eligibility after a minimum of 24 years.

g¶91 In December 2003, Montgomery filed a delayed appeal. Appellate

counsel certified that there was no merit to the appeal and, under the authority

ofAnder.s v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (;1967),

filed a motion to voluntarily dismiss the appeal. We granted the motion and

dismissed the appeal.

{'^j 10) In October 2004, Montgomery filed a pro se motion for DNA testing

of the bullet recovered from the pastor's body. He claimed that his DNA would

not be on the bullet, so "it would be impossible fo7° me to have used a firearm to

shoot the victim."' He further argued that if he did not shoot the victim, "I

would not have set the fire, making me innocent of aggravated arson." The

state opposed DNA testing under forrner R.C. 2953.82(D), which at that time

stated that the prosecuting attorney's disagreement with an :inmate's request

for Dl'vTA testing was "final and is not appealable by any pex-son to any cour.t[.]"

The court did not rule on this motion.

I;IIg In November 2006, Montgomery filed a petition for postconviction

relief and a motion for resentencing. Both motions sought resentencing on

gx-ounds that the court imposed more than the minimum sentence and imposed

consecutive sentences in violation of the United States Supreme Court decision

in.8lakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),

which held that any sentence beyond the statutory minimum that required

judicial finding of facts not proven to a jury beyond a reasonable doubt or

admitted by the defendant was unconstitutional. The state opposed the petition

on grounds that Montgomery pleaded guilty to an agreed sentence and that

Blakely could not be applied retroactively.

{¶12) At the same time he filed his petition for postconviction relief,

Montgomery filed an application to reopen his direct appeal, asserting that

appellate coun:sel was ineffective for failing to raise sentencing issues relating

to his receiving more than the mirumum prison term and consecutive sentences.

We treated the application as a motion to reconsider the dismissal of the prior

appeal and granted the motion. We then held, consistent with other appellate

districts, that Montgomery's agreed sentences foreclosed appellate review

concerning the length of his sentence. See State V, 1!/^ontgomery, 8th Dist.

Cuyahoga No, 839I4, 2008-®hio-443, ^;' 6. We also rejected a claim that trial

counsel was ineffective for allowing Montgomery to accept a plea bargain to

niore than the minimum term and to consecutive sentences. I.d. at 17.

{^131 In July 2011, Montgomery filed a motion to withdraw his guilty

plea. Recanting his confession, he argued his actual innocence. He also argued

that the state withheld exculpatory evidence, the existence of which would have

proven his innocence. Finally, Montgomery argued that trial counsel failed to

investigate the evidence and ignored his desire to retract his plea and go to

trial.

{¶^:4} The motion to withdraw the guilty plea cited seven different

"problems" with the state's case: (1) the murder weapon was not found and

Montgomery's story about how he purchased the gun was refuted by the store

owner who denied employing anyorie matching the description of the clerk who

allegedly sold Montgomery the gun; (2) there was evidence that a church lock

box used to store bingo receipts had been opened and burned currency was

found at the scene of the fire, thus suggesting that the pastor had been robbed,

even though the police had no evidence that Montgomery committed this

robbery; (3) the state failed to divulge evidence that the pastoi-'s cell phone was

later found in the possession of someone from outside the church, suggesting

that the pastor's cell phone had been taken by the robber; (4) the coroner found

evidence of blunt trauina to the pastor's head, suggesting that he had struggled

with the murderer; (5) the police disregarded evidence that a church employee

niay have been present at the church at the time of the murder and that this

person had financial difficulties that provided a motive for committing a

robbery; (6) there was no gunshot resi.due on Montgomery's cloth.ing consistent

with his having fired a gun; and (7) Montgoinery's interrogation was "a model

of unreliability."

{¶15} The state opposed the motion to withdraw the guiltv plea on

grounds that Montgomery had grossly distorted the facts; that his claims could

have been raised on direct appeal; and that he failed to establish the existence

of a manifest injustice sufficient to permit the court to allow him to witlzdraw

the plea. To support its argument that Montgomery faiied to show a manifest

injustice in the state's failure to disclose exculpatory evidence; the state

appended an affidavit from one of Montgomery's trial attorneys. That attorney

stated that he received full discovery on all of the "problems" raised in the

niotion to withdraw the guilty plea and that he shared that discovery with

Montgomery.

16) Montgomery filed a motion to strike his trial attorney's affidavit on

grounds that it violated R.C. 2:317.02(4), that prohibits an attorney fron^.

testifying concern.ing a communication made to the attorney by a client or the

attorney's advice to a client. The state opposed the motion by arguing that the

affidavit did not contain any communications by Montgomery to trial counsel

and that Montgomery had, in any event, waived the attorney-client privilege by

raising a posteonviction ineffective assistance of counsel claim. The court

denied the motion. to strike the affidavit because it found that the affidavit did

not reveal any communications between Montgomery and trial counsel.

J¶ 17) The court denied the motion to withdraw the guilty plea finding it

was barred by res judicata, The court held that "[e]ach claim raised in

iVlontgomery's conclusions as stated in his Corrected Motion to Withdraw Guilty

Plea were facts in existence and known to Montgomery at the time of his plea,

sentencing, and subsequent direct appeal and petition for postconviction relief."

The court also found no basis for concluding that the state withheld exculpatory

evidence of cell phone records, noting that "Montgomery does not dispute that

the records were, in fact, provided to defense counsel." Finally, it found that

claims of ineffective assistance of counsel relating to the guilty plea and

Montgomery's fabricated confession could have been raised on direct appeal, so

they were res judicata.

II

I^,' 181 The first assignment of error is that the court abused its discretion

by denying Montgomery's motion to strike the affidavit of his trial attorney.

Montgomery argues that the attorney's statement that he had. received and

reviewed prior to the plea proceedings all of the evidence described in

Montgomery's motion to withdraw his guilty plea violated the attorney-client

privilege set forth in R.C. 2317.02(A).

A

{f, 19} Montgomery claimed his decision to plead guilty resulted from (1)

the state's failure to disclose favorable evidence to the defense and (2) his

attorneys' failure to investigate both the case and his mental condition that

caused him to falsely confess to the murder. Corrected Motion to Withdraw

Guilty Plea at. 13. The specific claims relating to trial counsel's performance

were that they had a duty to investigate the case and that, had they done so,

they would have learned of the fabricated details relating to Montgomery's

purchase of the gun. 'I'rial counsel would also have learned that the pastor's cell

phone had turned up in the hands of someone unaffiliated with the church.

Montgomery reasoned that the missing cell phone, viewed in conjunction with

the opened lockbox, created the inference that the pastor had been murdered

during a robbery. Finally, Montgomery argued that had trial counsel

investigated these lea.ds, they would have taken more seriously Montgomery's

claims of actual innocence and investigated his mental state when confessing

to the rriurder.

!'fIl 20) The trial attorney's affidavit stated i:n relevant part:

3. Affiant avers that during the pre-trial discovery process, he andco-counsel received supplemental discovery from the State thatincluded thirteen pages of Sprint cell phone records. Affiant knew

that the cell phone records were those of the victim's cell. phone andthat the victim's cell phone was on and receiving calls after thevictim's death. Additionally, Affiant knew that the person inpossession of the victim's cell phone was a neighborhood resident.

4. Affiant avers that he knew the details of the Cleveland Policeinvestigation into the victim's mzzrder, including the investigationinto Montgomery's explanation that he purchased the firearm usedto murder the victim from a male employee of a local market.Affiant knew that Cleveland Police detectives interviewed the storeowner of the market, and that owner denied having an employeematching the description provided by Montgomery. Affiant alsoknew that the murder weapon was never found.

5. Affiant avers that during the pre-trial discovery, he and co-counsel received discovery from the State that included notice ofburnt money beirig found outside of a strongbox in the fire scene.

6. Affiant avers that the above-stated information was discussedwith Montgomery prior to the entry of his guilty pleas.

B

{¶ 21} In Ohio, the common law attorney-client privilege has been codified

in R. C. 2317.02(A). That section forbids an attorney from testifying "concerning

a communicatiozi made 'to the attorney by a client in that relation or concerning

the attorney's advice to a client * * *." Although R.C. 2317.02(A) does not define

the term "communication," that word is understood to encompass "infor mation

relating to the representation." See Prof.Cond.lt. 1.6, coznzv.ent 2. ln this

context, the word "representation" is important - the attorney-client privilege

exists only when the communication is for the purpose of requesting or

receiving legal advice and is in.tended to be confidential. State z). Post, 32 Ohio

St.3d 380, 387,513 N.E.2d 754 (1987); Ccznnell u. Rhodes, 31. Ohio App.3d 183,

509 N.E.2d 963 (8th Dist.198C).

I ^122} The court incorrectly found that the contents of the trial attorney's

affidavit did not relate to "communications" between the trial attorney and

Montgomery. The affidavit plainly referred to information relating to counsel's

representation of M:ontgomery. Admittedly, the affidavit did not state precisely

what the trial attorney "discussed" with Montgonlexy. But the affidavit

contains dotails about what the trial attorney knew, so his allegation that he

"discussed" those details with Montgomery could only mean that he conveyed

the substance of those details to Montgomery. He thus divulged the substance

of his communications with Montgomery. By stating that he discussed the

subject matter of the affidavit with Montgomery, the trial attorney testified (by

sworn affidavit) to attorney-client communications.

C

I¶231 Despite the court"s error in finding that the affidavit did not revea1

any communications between Montgomery and the trial attorney, the state

argues that an exception to the privilege applies in the form of the self

protectiori exception.

1^24} The attorney-client privilege set forth in R.C. 2317.02(A) is not

absolute: it can be waived by the client and is otherwise subject to exceptions.

Squires, Sanders & Denzpsy, L.L.P. v. Givaudan ,^+'laL,ors Corp., 127 Ohio St.3d

161, 201.0-(Jhio-44699 9371V.E,2d 533, ^ 47. An exception to the attorney-client

privilege means that "the privilege does not attach to the communications in the

first instance and is therefore excluded from the operation of the statute." Id.

For example, an exception to the attorney-cli.ent privilege exists that permits

"an attorney to testifv concerning attornev-client communications where

necessary to establish a claim for legal fees on behalf of the attorney or to

defend against a charge of malpractice or other wrongdoing in litigation

between the attorney and the client." Id., at paragraph one of the syllabus.

This has become known as the "self-protection" exception to the attorney-client

privilege. Id, at ,̂ 'j 48.

1¶25g In its opposition to Montgomery's motiori to strike the affidavit of

trial counsel, the state erroneously relied on the self-protection exception set

forth in Squires, Sanders & .Dempse,y to argue that trial counsel had the right

to file the affidavit to protect.himself against Montgomery's claim of ineffective

assistance of counsel. Squires, Sanders & .Derr2psey made it clear that the self-

protection exception applies only in "litigation betvaeen. the attorney and client."

A claim of ineffective assistance of couzl.sel. is not litigation between the attorney

and client, so -Lhe self-protection exception does not apply in this case.

D

Q^j 26) Even though the self-potection exception does not expressly apply,

the principle behind the exception has been applied in criminal po.stconviction

proceedings to find that a petitioner who rai.ses a Sixth Amendment claim of

ineffective assistance of counsel waives the attorney-client privilege as to

matters reasonably related to the claim of inadequate representation. See

State u. Howard, 2d Dist. Montgomery No. 8001, 1984 Ohio App. LEXIS 8392

(Jan. 4, 1984).

ICH271 In Johnson v. Alabama, 256 F.3d1.156 (l. i.th Cir. 2001), the United

States Court of Appeals for the Eleventh Circuit recognized that the

attorney-client privilege is waived i.n a habeas corpus proceeding when a

defendant asserts a claim of ineffective assistance of counsel. The court stated:

[lAlhen a habeas corpus petitioner * * * launches an attack on th.ereasonableness of his attorney's strategy in conjunction with aclaim of ineffective assistance of counsel, he puts at issue hiscommunications with counsel relating to those strategic choices. AsStrickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80L.Ed.2d 674 (3.984),] itself emphasizes, the "reasonableness ofcounsel's actions may be determiried or substantially influenced bythe defendant's own statements or actions. Counsel's actions areusually based, quite properly, * * * on information supplied by thedefendant * * k[and] *** inquiry into counsel's conversations withthe defendant may be critical to a proper assessment of counsel's ** * litigation decisions." 466 U.S. at 691, 104 S.Ct. at 2066; see alsoC12andlPr [z,,. Unitecl States], 218 F.3d [1305] at 131.5-19 [(1lth Cir.2000)]. ("Because the reasonableness of counsel's acts **" dependscritically upon information supplied by the [petitioner] or the[petitioner's] own statement or actions, evidence of a petitioner'sstatements and acts in dealing with counsel is highly relevant toineffective assistance claims." (Citations and internal quotationmarks omit.ted.)). Although the precise boundaries of the waiverwill vary from case to case, and in many instances will requirecaref-u.l evaluation by the district court, there should be noconfusion that a habeas corpus petitioner alleging that his counselmade unreasonable strategic decisions waives any claim of

privilege over the contents of communications wit.h counsel relevantto assessing the reasonableness of those decisions in thecircumstances.

Id, at 1179.

{C281 The rationale for the waiver of the attorney-client privilege in

postconviction ineffective assistance of counsel claims is that it would be

incongruous that a post.conviction petiti.oner could accuse trial counsel of failing

to provide adequate representation, yet invoke the privilege to bar any evidence

from the source most likely to contradict th.at accusation. "Surely a client is not

free to make various allegations of misconduct and incompetence while the

attorney's lips are sealed by invocation of the attorney-client privilege." Ta.sby

u. LTnited States, 504 F.2d 332 at 336 (8th Cir. 1974). "ln other words, while a

petitioner is free to use the attorney-client privilege as a`shield,' it is improper

to use it as a`sword' by seeking to deprive an opposing party of material by

which that party may defend against the claim raised." Breton u. Gomm.r. of

Correction, 49 Conn. Supp. 592, 899 A.2d 747 (Sup.Ct.2006).

{¶291 The Ohio rule set forth in Howard is consistent with the great

weight of cases, both federal and state, finding that a claim of ineffective

assistance of counsel in a postconviction proceeding waives the attorney-client

privilege with respect to matters relevant to the allegation. See, e.g., In re Gray,

123 Cal. App.3d 614, 176 Cal.Rptr. 721 (1981) (stating there is no

attorney-client privilege in a habeas corpus proceeding); State v. .KrUchten, 101

Ariz. 186, 417 P.2d 510 (Ariz. 1966) (finding that a party waived his privilege

by asserting in a postconviction proceeding that his counsel was incompetent);

Everett u. Everett, 319 Mich. 475, 29 N.W.2d 919 (N.Iich. 1947) (finding the

former attorney's affidavit disclosing certain confidential comnaunications to be

admissible following the client's motion for new trial on the ground that

plaintiffs former counsel was incompetent); Ex parte Lewis, 36 So.3d 72

(skla.Crim. App.2008) (finding a claim of ineffective assistance of counsel in the

postconviction proceeding waived the attorney-client privilege as to matters

relevant to his allegations of ineffective assistance of trial counsel); State v.

Walen, 563 N.W.2d 742 (iinn.1997) (finding that a defendant who claims

ineffective assistance of counsel necessarily waives the attorney-client privilege

as to all communications relevant to that issue),

E

1¶30) Although an i.neffective assistance of counsel claim waives the

attorney-client privilege, the question remains whether a criminal defense

lawyer who is the subject of a former client's ineffective assistance of counsel

claim may, without the client's informed consent, disclose confidential

information to the state prior to any proceecling on the client's claim in order to

help the prosecution establish that the lawyer's representation was competent.

Montgomery cites to Formal Opinion 10-456 by the American Bar Association

("ABA") to argue that his trial attorney violated the Rules of Professional

Conduct by submitting an affidavit that disclosed confidential information.

I¶31} Prof.Cond.R. 1.6 is substantively similar to Rule 1.6 of the

American Bar Association Model Rules of Professional Conduct. It states:

(a) A lawyer. shall not reveal information relating to therepresentation of a client, including information protected by theattorney-client privilege under applicable law, unless the clientgives i.nformed consent, the disclosure Is impliedly authorized inorder to carry out the representation, or the disclosure is permittedby division (b) or required by division (c) of this rule.

(Emphasis sic.)

I¶32) Prof.Cond.R. 1.6(a) is not absolute. .Prof.Cond.R. 1.6(b) states:

A lawyer may reveal .i.nformation relating to the representation ofa client, including information protected by the attorney-clientprivilege under applicable law, to the extent the lawyer reasonablybelieves necessary for any of the following purposes:

(5) to establish a claim or defense on behalf of the lawyer in acontroversy between the lawyer and the client, to establish adefense to a criminal charge or civil claim against the lawyer basedupon conduct in which the client was involved, or to respond toallegations in any proceeding, includi.ng any disciplinary matter,concerning the lawyer's representation of'the client[]

I j 33, In Formal Opinion 10-456, the ABA concluded that the first two of

the three exceptions to Model Rule 1.6(b)(5) do not apply to postconviction

ineffective assistance of counsel claims: an ineffective assistance of counsel

claim is not a claim between a lawyer and client (it is a challenge to the

constitutionality of a conviction) nor is a criininal postconviction motion one

that the lawyer must defend. Id. at 3-4, The ABA did find, however, that the

third exception appl.ies because an ineffective assistance of counsel claim is one

that requires a lawyer "to respond to allegations in any proceeding concerning

the lawyer's representation of the client."' -1d. at 4.

j^; 341 The ABA concluded that a lawyer may disclose information

protected by Model Rule 1.6 to the extent that the lawyer "reasonably believes

[it is] necessary" to do so in the lawyer's self'-defense, but found it "highly

unlikely that a disclosure in response to a prosecution request, prior to a

court-supervised response by way of testirnony or otlierw_ise, will be justifiable."

Id. at 1. In forming this opinion., the ABA noted that many ineffective

assistance of counsel claims are resolved without taking evidence because of

procedural deficiencies or a failure to show actual prejudice that a lawyer would

rarely have to act to voluntarily disclose information before required to do so by

the court. .Id. at 5. The ABA found:

Permitting disclosure of client confidential information outside

court-supervised proceedings undermines important interests

protected by the ronfidential.ity rule. Because the extent of trial

counsel's disclosure to the prosecution would be unsupervised by

the court, there would be a risk that trial c.ounsel would disclose

information that could not ultimately be disclosed in theadjudicative proceeding.

Id. at 5.

{¶35} In other words, the ABA. concluded that disclosure of protected

information would rarely be necessary outside of court-supervised proceedings

and concerns for the lawyer's reputation or other collateral consequences "can

almost always be addressed by disclosing relevant client information in a

setting subject to judicial supervision." Zd. In this context, the ABA considered

"judicial supervision" to mean a formal proceeding where the client would have

the opportunity to object to the disclosure and obtain a judicial ruli.ng. Id. at 2.

I¶36) We have no authority to address claimed violations of the Rules of

Professional Conduct - that authority rests solely with. the Ohio Supreme

Court. State ex rel. Buck v. Maloney, 102 Ohio St.3d 250, 2004-Ohio-2590, 809

N.E.2d 20. But as even the ABA noted, an ineffective assistance of counsel

claim waives the attorney-client privilege as an evidentiary matter. Formal

Opinion 10-456 at 1. While it is true that the Rules of Professional Conduct

contain confidentiality provisions that are broader than the attorney-client

privilege (lawyers must keep a client's "secrets" in addition to any confidences),

violations of the Rules of Professional Conduct have no bearing on the

ad,rnissibility of evidence. "A violation of attorney disciplinary rules is not of

constitutional magnitude and consequently suppression is not constitutionally

required." United States u. Guerrerio, 675 F,Supp. 1430, 1433 (S.D..1^,T.^.'.1987).

So whether the trial attorney violated the Rules of Professional Conduct by

offering an affidavit that disclosed client communications is immaterial to the

question of whether that affidavit could be properly admitted against

Montgomery's motion to withdraw his guilty plea,

1^,,, 371 Even if we did have th.e authority to address the substance of

Formal Opinion 10-456, we differ with the ABA's opinion that an attorney who

is the subject of an ineffective assistance of counsel claim who may have a

reasonable need to disclose relevant client information should do so only with

prior judicial approval in the proceeding in which the claim is joined.

I ¶381 .Prof.Cond.R. 1.6(b)(5) does not require any judicial intervention as

a prerequisite for disclosing client inforniation. Nevertheless, there are

limitations bui.lt into Prof.Cond.R. 1.6(b)( s) that act as a safeguard against

potential abuse. The rule allows disclosure only "to the extent the lawyer

reasonably believes necessary" to respond to the client's allegations.

"Reasonably" in this context "denotes the conduct of a reasonably prudent and

competent lawyer." Prof. Cond.l,,. 1.0(I). If a lawyer does choose to disclose

information (disclosure is not mandatory), the question becomes how much

information should be disclosed. That question is answered by Comment 14 to

Prof: Cond.R. 1.6, which states that. 'Jaj disclosure adverse to the client.'s interest

should be no greater than the lawyer reasonably believes necessarv to

accomplish the purpose." So even if a lawyer chooses to disclose information in

response to a charge of ineffective assistance of counse]., t1ie disclosure must be

limited to information that refutes the speci.fic charge. This is not to say that

a lawyer should not first seek judicial approval before disclosing information,

but only that i.t is not required by the rule and the very narrow scope of the

information allowed to be disclosed suggests that the rule can be enforced

without prior judicial intervention.

{¶391 Our opinion is shared by several state bar associations that have

addressed ABA Formal Opinion 10-456. In Opinion 364, the District of

Columbia F3ar^: Association stated that "we do not share the [ABA's] view that

extrajudic<ial disclosure will not be justifiable." The D.C. Bar Association noted

that its Rule 1.6(e)(3), like the Model Rule 1.6(b)(5) and Prof.Cond.li.. 1.6(b)(5),

"does not require a court order to make the disclosures that the rule permits."

The bar association thus concluded:

D.C. Rule 1.6(e)(3) permits a defense lawver whose conduct hasbeen placed in issue by a former client's ineffective assistance ofcounsel [IAC] claim to make, without judicial approval orsupervision, such disclosures of information protected by Rule 1.6as are reasonably necessary to respond to the client's specificallegations about the lawyer's performance. Even so, a laNvyershould reflect before ma.king disclosures of protected information toprosecutors, courts, or others. A lawyer's confidentiality obligationsto her former client are broader than the attorney-client privilege.Although the former client's claim likely waives the evidentiaryprivilege, that alone does not eliminate the broader confidentialityobligation owed under :Rule 1.6. Nor does the limited "self-defense"exception to confi.den-"tiality in Rule 1.6(e)(3) open the door tounlimited. disclosures to prosecutors, courts or others of protectedinformation. The rule allows a lawyer to disclose protectedinformation only to the extent "reasonably necessary" to respond to"specific allegations" by the former client. R,easonabieness is afact-bound issue about which others may later disagree. Lawyerswho are uncertain about the permissibility of disclosing protected

information in response to an IAC claim should consider seekingin.dependent advice or judicial approval of the disclosure.

See also 2011 Formal Ethics Opinion 16 of the North Carolina Bar Association

(declining to adopt ABA opinion that would. contradict state rule that grants

lawyers discretion, without court direction or supervision; to disclose privileged

information in response to ineffective assistance of counsel claims in the

narrowly-tailored fashion contemplated by the rule); Board of Professional

Responsibility of the Supreme Court of Tennessee, Formal Ethics Opinion 2013-

F-156 ("the Tennessee Rules of Professional Conduct do not stri.ctly prohibit a

former defense lawyer alleged to have rendered ineffective assistance of counsel

from providing information to the prosecution prior to or outside an in-court

proceeding.").

g ¶40) Trial counsel offered a narrowly drafted affidavit to address the

specific deficiencies in representation asserted in Montgomery's ineffective

assistance of counsel claim. The trial attorney did refer to "communications"

between him and Montgomer°y, but those references were simply that the trial

attorney was aware of the allegedly exculpatory material provided by the state

and that he discussed that information with his client prior to Montgomery

entering his guilty pleas. The affidavit thus disclosed no more information than

was necessary to refute Montgomery's specific allegations of deficiencies in the

trial attorney's representation relating to his failure to inform Montgomery

about possible exculpatory evidence. We have no basis for concluding that the

court erred by failing to strike the affidavit.

III

1^1 411 We next consider Montgomery's argument that the court erred by

finding the claims raised in the motion to withdraw the guilty plea were res

judicata.

A

{^1, 421 The usual formulation of res judicata in postconvietion px-oceedings

is that it bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal. State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus

Res judicata does not, however, apply only to direct appeals, but to all

postconviction proceedings in which an issue was or could have been raised.

Thus, res judicata bars the assertion of claims in a motion to withdraw a guilty

plea that were, or could have been, raised in a prior proceeding. State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, T 59, citing State

v. IffcGee, 8th Dist. Cuyahoga No. 91638, 2009-(7hio-3374, ¶ 9.

B

I$ 43} ?^.Tone of the issues raised in the motion to withdraw the guilty plea

could have been raised on direct appeal because they relied on matters outside

the record of the guilty plea. They were properly the subject of a postconviction

nlotion. See State v. Smith, ;17 Ohio St.3d 98, 101, 477 N.E.2d 1_12$ (1985), fn.

1.

IT441 The issues raised by Montgomery in the motion to withdraw the

guilty plea could, however, have been raised in his 2006 petition for

postconviction relief. When a party has previously filed a petition for

postconviction relief, issues raised in a subsequent motion to withdraw guilty

plea that could have been raised in the petition for postconviction relief are res

judicata. See State v. McMinn, 9th Dist. Medina No. 2927-M, 1999 Ohio .App,

LEXIS 2745 (June 16, 1999).

{¶451 As the court fou:nd in its opinion denying the motion to withdraw

the guilty plea, Montgomery does not dispute that all of the evidence on which

he relies predates his 2006 petition for postconviction relief in which he failed

to raise any issue regarding his actual innocence. The centerpiece of

Montgomery's argument for actual innocence -- that the cell phone records

showing the pastor's cell phone had been used following his murder suggested

that the pastor had been the victim of a robbery - was soinething he could

have presented long ago in prior proceedings, Those records were provided to

trial counsel in September 2003 as part of a supplemental discovery response

filed by the state. As the court found, "Montgomery does not dispute that the

records were, in fact, provided to defense counsel."

1¶46) Montgomery complains that the state failed to designate the cetl

phone records as being exculpatory, but that argument is unavailing. The

state's obligation in discovery is to disclose any evidence that might be

exculpatory - it is not required to connect the dots for a defendant. In any

event, the trial attorney's affidavit made it clear that he received the cell phone

records in a supplemental discovery response and knew what those records

contained. The trial attorney admitted that the cell phone records showed that

"the victim's cell phone was on and receiving calls after the victim's death," and

that the trial attorney knew that the person in possession of the cell phone was

a neighborhood resident. All of these facts were communicated to Montgomery

prior to his guilty plea.

{¶47} Montgomery filed his own affidavit disavowing knowledge of'the

cell phone records until March 2010. That assertion is not only belied by the

trial attorney's affidavit, but by the record itself. We find it inconceivable that

?1/fontgomery, having sought DNA testing, having filed a direct appeal, and

having filed a petition for postconviction relief - all before March 2010 - was

unaware that the cell phone records were a part of the record before he entered

his guilty plea. Indeed, Montgoniery now concedes that the cell phone records

were a part of the trial court record and now complains that the 17 pages of cell

phone records were "buried by the State" because they were included with 26

other pages of documents obtained from his attorney's computer. This is a

disingenuous argument because the cell phone records comprised roughly half

of the supplemental discovery response. It is difficult to understand how so

many records could have been "buried."

^¶48} Finally, Montgomery points out that the trial attorney's affidavit

states that he received 13 pages of cell phone records, despite the record

showing that the state produced 17 pages of cell phone records. He confirms

this discrepancy by claiming that he received his case file from the trial

attorney and confirmed that it was missing four pages of the records. One of

those missing pages, the first page of the records provided by the state,

documented the pastor's last cell phone call made at 12:38 a.m. on the day of his

murder.

I ¶49} It is unclear why trial counsel's file was missing four pages of cell

phone records provided by the state, but that omission. is unimportant because

the trial court record does contain all 17 pages of cell phone records. Those

records were made a part of the record before 1VIontgomery entered his guilty

plea, so Montgomery was necessarily charged with knowledge of those records.

And to the extent that Nlontgomery became aware that there was a discrepancy

between the cell phone records in his trial attorney's case file ancl those

contained in the trial court record, he admitted that he knew about the

discrepancy approximately one year after entering his guilty plea. See

Defendant's Reply Brief to Motion to Withdraw Guilty Plea, at 6. Given that

knowledge, he could have raised that discrepancy in earlier postconviction

proceedings, so the issue is res judicata.

IT1,50} We reach similar conclusions regarding the remainder of

Montgomery's "problems" with the state's case. Trial counsel's affidavit stated

that he received and conveyed to Montgomery information relating to all of his

claims; notably, the failure to find the murder weapon; the investigation into

Montgomery's explanation as to how he obtained the gun he used to shoot the

pastor; and the opened lockbox with burned currency found in the pastor's

office. The court had no basis for concluding that Montgomery did not know of

this information and was so prevented from asserting claims i.n prior

postconviction proceedings. The court did not err by finding the ineffective

assistance of counsel claims were barred by res judicata.

IV

{T11- 51) Montgomery's second and third assignments of error overlap in

arguing that we should not apply principles of res judicata because to do so

would work an injustice. He maintains that he was unaware of many of the

details supporting his claim of actual innocence until after an investigative

reporter from the Philadelphia Inquirer interviewed b.im and others associated

with the case to make a compelling argument of actual. innocence. He thus

argues that his is the extraordinary case in which res judicata should not be

applied and the court should have conducted a full hearing on the motion to

withdraw the guilty plea.

A

1^10:^21 In State u. Simpki.ns, 117 Ohio St.3d 420, 2008-Ohio-1197, 884

N.E.2d 568, the Ohio Supreme Court stated:

Res judicata is a rule of fundamental and substantiai justice, seeState z>. Szefcyk ( 1096), 77 Ohio St.3d 93, 95, ? 99O-Ohio-337, 671.N.E.2d 233, citing Federated DepG. Stores, Inc. v. Moitie ( 1981), 452U.S. 394, 401, 101. S.0't. 2424,69 L.Ed.2d 103, that "`is to be appliedin particular situations as fairness and justice require, and that

is not to be applied so rigidly as to defeat the ends of justice orso as to work an injustice.", Grava. U. Parkrnan Twp. (1995), 73Ohio St.3d 379, 386-387, 1995-Ohio-331, 653 N.E.2d 226 (Douglas,J., dissenting), quoting 46 American Jurisprudence 2d (1994)786-787, Judgments, Section 522, and citing Goodson u.AlcDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 202, 2OBR 732, 443 N.E.2d 978.

Id.at1`25.

f¶53$ It is important to understand Simplzins in the context of its facts.

Simpkins pleaded guilty to offenses and was sentenced to a term of

incarceration, but was not advised at sentencing that he was subject to

postrelease control. Before Simpkins was to be released from prison, the state

asked the court to resentence him because the failure to inention postrelease

control made the sentence void under. State U. Dazak; 114 Ohio St.3d 94, 2007-

Ohio-3250, 868 N.E.2d 961. Simpkins argued that the issue of postrelease

control was res judicata because the state failed to raise it on direct appeal. The

Supreme Court refused to find the postrelease control sentencing issue res

judicata when it was plain that the trial cour.t had imposed a void sentence.

This caused the Supreme Court to conclude that "[t]he interests that underlie

res judicata, although critically important, do not override our duty to sentence

defendants as required by the law." Id. at ^,` 27.

VFH 54) In State v. Tinney, 5th Dist. Richland No. 2011 CA 41, 2012-Ohio-

72, the court of appeals cited Sin2pkins for the proposition that res judicata

would not bar a defendant from raising inconsistencies with h_is various

confessions and his mental competency to confess to certain crimes in a

postsentence motion to withdraw a guilty plea. Recognizing that Tinney had

raised the issue of his mental competency in two prior motions to withdraw his

guilty plea, the court of appeals nonetheless believed that "[t'h.e confluence in

this case of lingering concerns by some police officials of appell.ee's actual guilt

and the issue of appellee's mental competency has, in our minds, at least

heightened the possibility of an injustice done to appellee nearly twenty years

ago." Id. at 11 3 L

B

IT. 55} Montgomery argues that his claims are identzcal to those presented

in Tinney, so we should follow that case and allow hirn to withdraw his guilty

plea. We disagree. NTeither Si:nzpkins nor Tinney make a convincing case for

abandoning application of res judicata in this postconviction proceeding in

«Thich. the issues Montgomery raises were either raised or could have been

raised previously.

J'11,T, 56} It is unclear why the Supreme Court decid.ed Sim,^^kins on the basis

of it being unfair to apply res judicata to a void sentence. By the Supreme

Court's own precedent, res judicata only applies to a "valid, final judgmnt of

conviction." Ferrv, szcpra. A sentence that fails to include a mandatory term of

postrelease control is void and therefore not a valid, final judgment. Indeed, the

Supreme Court has now held that void sentences are "not precluded from

appellate review by principles ofres judicata, and may be reviewed at any time,

on direct appeal or collateral attack." State u. Fischer, 128 Ohio St.3d 92, 2010-

CJhio-6238, 942 N.E.2d 332, paragraph one of the syllabus. See also State v.

Billiter, 134 Ohio St.3d 103, 2012-0hio-5I44, 980 N.E.2d 960, syllabus. In light

of this subsequent precedent, Sirripkins should have been (and now would be)

decided on the basis of res judicata not applying at all to a void judgment; not

that it would be unfair to apply res judicata to bar a party from claiming that

a sentence was void.

^^,+, 57} Tinney presents a somewhat similar fact pattern to this appeal., but

contains so little analysis in its refusal to apply the doc'trine of res judicata that

we find it unpersuasive.

f ¶58) In 1992, Tinney gave multiple confessions to a murder/robbery and

then pleaded guilty to those offenses. In postconviction motions, he twice raised

the issue of his competency: first i.n a 1992 motion to withdraw his guilty plea;

second in a 2004-2005 motion to withdraw his guilty plea. In rejecting the 2005

motion to withdraw the guilty plea., the trial court found no indication that

Tinney was impaired by medication when confessing nor did his conduct give

any indication that hi.s plea "was other than voluntary." Id. at ; 30.

{T,,-59} In 2009, Tinney filed a third motion to withdraw his guilty plea.

The motion contained arguments relating to Tinney's competency at the time

he entered his plea, but also contained a new psychological report and profile.

The profile stated that Tinney suffered from rnajor depressive disorder and a

borderline antisocial personality traits that "appear[ ] to be persistent and

ha[ve] a chronic course that will manifest *** throughout his life." Id. at fi 29.

This caused the experts to conclude that Tinney "might engage in impulsive

masochistic acts such as falsely confessing to a crime while experiencing

symptoms of an actively decompensated depressed (and possibly psycliotic)

state." Id. The trial court granted Tinney's motion to withdraw the guilty plea

over the state's objections that his competency claims were res judicata. Citing

precedent for the proposition that the doctrine of res judicata is not to be

applied so as to work an injustice, the court of appeals concluded that a

psychological profile relating to Tinney's competency "heightened the possibility

of an injustice" done at the time Tinney entered his guilty plea and refused to

find the competency claims contained iri the third motion to withdraw the guilty

plea were res judicata. Id. at 31. It did, however, remand the case to the trial

eourt for the purpose of conducting a hearing on the motion to withdraw the

plea.

c

1¶00) Even if Tinney is viable precedent for the proposition that the

doctrine of res judicata should not be applied when doing so would create an

injustice, no such injustice exists in this case.

1

I¶61) Because this is a postsentence .rnotion to withdraw a guilty plea, we

apply Crim.R. 32.1, that permits a criminal defendant to withdraw a plea after

the imposition of sentence only to correct a "manifest injustice." A manifest

injustice has been defined as a "clear or openly unjust act." State ex rel.

Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-®hio-271, 699 N.E.2d 83.

Under the manifest injustice standard, a postsentence withdrawal motion is

allowable only in extraordinary cases. State v. Smith, 49 Ohio St.2d 261, 264,

361 N.E.2d 1324 (1977). "A motion made pursuant to Crim..R„ 32.1 is addressed

to t.he sound discretion of the trial court, and the good faith, credibility and

weight of the movant's assertions in support of the motion are matters to be

resolved by that court." Id., at paragraph two of the syllabus. We therefore

review a trial court's refusal to allow a postsentence motion to withdraw a

guilty plea for an abuse of discretion. State v, Xie, 62 Ohio St.3d 521, 527, 584

N.E.2d 715 (1992).

2

I ^, 62) We need not decide whether the preventing an "injustice" standard

for not applying the doctrine of res judicata is equivalent to the "manifest

injustice" standard employed for granting postsentence motions to withdraw

guilty pleas - under either standard, Montgomery has failed to prove either

that it would be unjust to apply the doctrine of res judicata or that he showed

grounds to conclude that a refusal to allow him to withdraw his guilty plea was

necessary to prevent a manifest injustice.

{¶631 Montgomery premised his motion to withdraw his guilty plea on

grounds of actual innocence, but offered no evidence that actually proved his

innocence. Having pleaded guilty to murder and arson, the presumption of

innocence is no longer present. In seeking postconviction relief, Montgomery

seeks to "upset the prior determination of guilt," Ross v. Moffit, 417 U.S. 690,

611, 94 S.Ct. 2437, 41 .L.Ed.2d 341 (1974), so he is presumed guilty and

therefore obligated to offer more than just the possibility that he pleaded guilty

to a crime that he did not commit. This was especially so when he had both

motive and opportunity to commit murder and arson.

{Tj 64) Not only -was Montgomery to be transferred from St. Stanislaus, it

appears that he was aware he would be dismissed from the Franciscan Order.

In personal journal entries written a. few weeks before the murder, Montgomery

wrote that he was "so mother fucking pissed off' at being told to leave St.

Stanislaus and that "my life is becoming a living hell." In his written

confession, he told the police that he was "so angry and enraged" by his transfer

that "I wanted to hurt someone." Given his state of mind, Montgome.ry had a

motive to commit murder.

I TI 651 Montgomery also had a clear opportunity to commit the murder.

He lived in the church rectory, a floor above the pastor's office, so he had. easy

access to the pastor's office. In addition, he likely would have known who was

present in the rectory at the time, thus ensuring the lack of any witnesses.

I ¶66} It is true that the police were unable to locate the murder weapon,

but Montgomery knew that before he pleaded guilty. He wrote his trial

attornev before entering his guilty plea and said: "There is no truth whatsoever

to my claim that I purchased a gun at. [the convenience store] on 12/06/02. I

believe the statement frorn the owner will verify this." So Montgomery entered

his guilty plea knowing that he lied to the police in his confession.

^¶67) This brings us to the major deficiency with Montgomery's

argument: he entered his guilty plea despite claiming that he fabricated his

confession. Montgomery sent several letters to his trial attorney in which he

said he falsely confessed to the murder. In one letter, Montgomery asked to

meet again with the psychiatrist who examined him short].y after the murder,

saying that he wished to review his mental health history, including a "lifetime

of people pleasing any lying by telling people what I think they want to hear."

In another letter, he wrote:

I was in a state of schizophrenia that produced. severe delusions inmy thinking, causing me to make false statements on 12/08/02 a-tthe police interrogation. At that time I was suffering fromdelusions of grandeur that perhaps if I was no longer to be aFranciscan, then I was to be a martyr for a sinner, the killer andarsonist who committed the crime I was charged with. I gave mystatements to the police in such a way that they could convict me.

1^168) Before entering his guilty plea, lVZontgomery wrote his trial

attorney to say that "I wish to take this case to trial and I do not want to plea

bargain * * * I am firmly convinced that I must plead my innocence and follow

God's law which is above human law." Just one month before pleading guilty,

Montgomery continued to insist that he did not wish to pursue a plea bargain

and that nothing his attorney "can say or do will change my mind."

f; 691 But he did enter a guilty plea. And that plea was not ruslied - ten

months elapsed between his con.fession to the murder and the guilty plea.

Despite claiming his innocence to his trial attorney, Montgomery, a highly

educated person, pleaded guilty consistent with his confession, telling the court

that he understood the consequences of his guilty plea. We view the recantation

of a confession with "extreme suspicion." Williams v. ^,^o„vle, 260 F.3d 684, 708

(6th Cir.2001), quoting United States v. Chambers, 944 F.2d 1253, 1.264 (6th

Cir.1991), so we can only conclude that Montgomery had a change of heart

about entering his guilty plea. A "change of heart" is "insufficient justification

for the withdrawal of a guilty plea." State v. Johrzson, 8th Dist. Cuyahoga No.

83350, 2004-Ohio-2012, T., 38, citing State v, Lambros, 44 Ohio App.3d 102, 103,

541 N.E.2d 632 (8th Dist.l988).

{¶ 70) We therefore find that Montgomery cannot convincingly argue that

his confession and guiltv pleas were the product o:f trial counsel's failure to

investigate. No manifest injustice has been sliown. The court did not abuse its

discretion by denying the motion to withdraw the guilty plea.

I¶71} Judgment affirmed.

It is ordered that appellee recover of appellant its costs h.erein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A cert^.zed copy of this entry shall. constitute the mandate pursuant to

Rule 27 Xthe Pules/Ya'ellate Flocedure.

J. STLWAP,T,`AD11%Jl^,7ISTRATIVE JUDGE

LA.RV4T!^^ JONES, SR., J., andEILEEN A. ^^^^LL^4GI^EPL, J., C°C3^TCUR