[Cite as State v. Dilley, 2012-Ohio-5288.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98098




                                        STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     WILLIAM DILLEY
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-558185

        BEFORE: Keough, J., Blackmon, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                     November 15, 2012
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
James A. Gutierrez
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, William Dilley, appeals from the trial court’s

judgment, rendered after a bench trial, finding him guilty of tampering with records,

perjury, and attempted theft, and sentencing him to two years incarceration. He contends

that his convictions were not supported by sufficient evidence and against the manifest

weight of the evidence, and that the matter should be remanded for de novo resentencing

because the trial court failed to properly sentence him to postrelease control. Finding no

merit to the appeal, we affirm.

                                      Background

       {¶2} In January 2012, Dilley was charged with one count each of tampering with

records, in violation of R.C. 2913.42(A)(2); perjury, in violation of R.C. 2921.11(A);

attempted theft, in violation of R.C. 2923.02/2913.02(A)(2); and theft, in violation of

R.C. 2913.02(A)(2).

       {¶3} The state’s evidence at trial demonstrated the following. Until early 2009,

when his employment was terminated, Dilley was a financial advisor for Smith Barney in

its Pepper Pike office.    As a financial advisor, Dilley counseled clients about their

investments and procured investments for them. In 2008, one of his clients was Betty

Montgomery, a 92-year-old woman who resided in the assisted living area of Stratford

Commons, a nursing home.
      {¶4} Dilley had managed Montgomery’s investments since 1995, when she

executed a will and a trust. The will contained pour-over provisions leaving all of her

assets and possessions to the trust. The trust provided that three named individuals were

to receive monetary distributions ranging from $1,000 to $3,000 upon her death, and the

remainder of the trust assets were to be divided and distributed evenly to two charitable

organizations: one-half to Holy Family Cancer Home and one-half to Save-A-Pet.

      {¶5} In 2003, Montgomery, who had no children or known heirs, was admitted to

the Stratford Commons assisted living facility.    At trial, Dr. Marwan Hilal, a staff

physician at Stratford Commons who cared for Montgomery from 2003 until her death in

2009, reviewed notes from nursing staff, monthly summaries of her condition, and

medication and treatment forms. Notations on the documents indicated that in 2003,

Montgomery suffered from “anxiety and depression.” In 2004, she “required moderate

assistance in financial decisions” and was “more forgetful and slightly disoriented.” The

notes indicated that by September 2005, Montgomery “seem[ed] forgetful and slightly

disoriented” and required “maximum assistance in financial decisions.”

      {¶6} Dr. Hilal testified that in January 2007, the nursing notes indicated that

Montgomery had “dementia and [a] change in mental status” and in December 2007, was

“confused and forgetful.” The nursing notes for each of January, February, March, and

April 2008 also indicated that Montgomery was “confused.” On June 30, 2008, Dr. Hilal

examined Montgomery and noted that she suffered from “moderate to severe dementia.”

According to Dr. Hilal, the ability to make sound judgments, especially those regarding
financial decisions, is impaired even in the early stages of dementia. He testified further

that Montgomery’s condition worsened from 2006 to 2008, and she would not have had

the mental capacity in 2008 to make an informed decision about transferring the assets of

her estate.

       {¶7} This conclusion was consistent with the testimony of Frances Koleszar, who

testified that she had been good friends with Montgomery since 1964. Koleszar testified

that she and her husband visited Montgomery at Stratford Commons several times a year,

but by 2007, Montgomery had difficulty remembering who they were. Koleszar stated

that in December 2007, when she and her husband stopped in to visit Montgomery, she

was unable to recognize them at all and repeatedly asked them who they were.

       {¶8} Dr. Hilal’s conclusion about Montgomery’s mental capacity was also

consistent with the testimony of licensed practical nurses who worked at Stratford

Commons and interacted with Montgomery. Veronica Kennedy-Williams testified that

she cared for Montgomery daily from 2006 to 2008 and observed her mental condition

progressively worsen.     Jose A. Giener testified that he had regular contact with

Montgomery from 2006 to 2008 and observed that she declined physically and mentally

during that time. Barbara Hooten, who cared for Montgomery at least twice a week,

testified that Montgomery was confused and unable to comprehend where she was, the

current season, or the current calendar year.

       {¶9} According to Hooten, a man who had been talking to Montgomery and

Montgomery’s friend John (who also lived at Stratford Commons) approached her one
day at the nurses’ station and asked her to sign some documents. Upon realizing that the

documents related to financial matters, Hooten spoke to Tricia Wollschleger, a social

worker at Stratford Commons, and asked her to handle the situation because “it didn’t

seem right.”

        {¶10} Wollschleger testified that she went to the lobby, where she saw Dilley,

Montgomery, John, and an unidentified woman sitting on a couch.              When Tricia

introduced herself and asked if she could help, the unidentified woman stood up, said

something that made Wollschleger realize she was a notary public, and walked out the

door.

        {¶11} On April 15, 2008, Dilley returned to Stratford Commons with a different

notary who witnessed Montgomery sign an amended trust that made Dilley the sole

beneficiary of the trust. Debra Benjamin, the notary, testified that she had never met

Dilley before he called her and asked her to meet him at Stratford Commons. Dilley met

Benjamin in the lobby when she arrived, and they went to Montgomery’s room, where

Dilley chatted with Montgomery for about 15 minutes. They then went to the lobby area

and sat at a table. Benjamin testified that Dilley got out papers, and told her that he had

taken care of Montgomery’s finances for many years, and was going to be the executor of

Montgomery’s will.     Dilley never told Benjamin that he was going to be the sole

beneficiary of the amended trust.

        {¶12} Benjamin testified that Dilley showed her Montgomery’s birth certificate,

and she confirmed with several Stratford Commons employees who walked up to the
table that the woman at the table was indeed Betty Montgomery.              According to

Benjamin, one staff member witnessed Montgomery’s signature on the documents, but

the other staff members left before she signed anything.         Benjamin stated that no

Stratford Commons administrators were ever at the table overseeing the transaction.

       {¶13} Kennedy-Williams, the nurse who witnessed Montgomery’s signature,

stated that there were no administrators from Stratford Commons either at or standing

around the table when Montgomery signed the amended trust. She testified further that

Dilley said that he was going to be taking care of Montgomery’s finances but never told

her that he would be a beneficiary of the trust.

       {¶14} Jon Lawrence, Dilley’s boss at Smith Barney, testified that Smith Barney’s

written policies regarding bequests to its financial advisors by clients other than family

members forbid any bequest under circumstances that create the appearance of a conflict,

and provide that special caution regarding such bequests be exercised when the client is

elderly or the client’s judgment may be impaired.         Smith Barney’s policies further

require that the financial advisor make management aware of such a bequest as soon as

the bequest becomes known to the advisor. Lawrence testified that these policies, which

only reiterate industry standards, were distributed in writing to Smith Barney’s financial

advisors in 2007, and Dilley was aware of the policies.

       {¶15} Montgomery passed away in January 2009. The value of the amended trust

upon her death was approximately $750,000.
       {¶16} Lawrence testified that in March 2009, after Dilley presented the amended

trust to Smith Barney for approval, he reviewed the 1995 trust and the 2008 amended

trust with Smith Barney’s legal department. The two documents were identical, except

that the beneficiaries under the original trust had been deleted, and Dilley was now listed

as the sole beneficiary of the amended trust. Lawrence met with Dilley, who denied that

he knew of the beneficiary change prior to Montgomery’s death. He also denied that he

knew the notary who signed the amended trust or who created the amended trust

document.    After further investigation, Smith Barney terminated Dilley’s employment.

Beth Michael, a risk officer at Smith Barney, testified that after his termination, she found

the 2008 amended trust document in Dilley’s computer files.

       {¶17} Subsequently, Smith Barney initiated an interpleader action regarding the

validity of the amended trust. David M. Gareau, the attorney for Holy Family Cancer

Home, testified that when he deposed Dilley for the interpleader action, Dilley admitted

that he had “cut and pasted” documents on his computer to created the amended trust.

To save litigation costs, Holy Family Cancer Home and Save-A-Pet eventually settled the

interpleader action. As a result of the settlement, Dilley received $75,000 and remained

as trustee of the amended trust; the remaining assets were divided evenly between Holy

Family Cancer Home and Save-A-Pet.

       {¶18} At the close of the state’s case, the trial court granted Dilley’s Crim.R. 29

motion for acquittal as to Count 4, theft, and denied the motion with respect to the other

counts. Dilley did not testify, and the trial court subsequently found him guilty of
tampering with records, perjury, and attempted theft. The court sentenced him to two

years on each count, to be served concurrently.

                                          Analysis

A.     Sufficiency and Manifest Weight of the Evidence

       {¶19} In his first and second assignments of error, Dilley contends that his

convictions were not supported by sufficient evidence and against the manifest weight of

the evidence.

       {¶20} The test for sufficiency requires a determination of whether the prosecution

met its burden of prodution at trial.           State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilty beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonble doubt.

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶21} A manifest weight challenge, on the other hand, questions whether the

prosecution mets it burden of persuasion.          State v. Ponce, 8th Dist. No. 91329,

2010-Ohio-1741, ¶ 17, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982). A reviewing court may reverse the judgment of conviction if it appears that the

trier of fact “clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” Thompkins at 387. A finding that

a conviction was supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency. Id. at 388.

       {¶22} Dilley was convicted of attempted theft under R.C. 2913.02(A)(2), which

provides that “[n]o person, with purpose to deprive the owner of property or services,

shall knowingly obtain or exert control over either the property or services * * * (2)

beyond the scope of the express or implied consent of the owner or person authorized to

give consent.”1

       {¶23} He was also convicted of tampering with records under R.C. 2913.42, which

provides that

       [n]o person, knowing the person has no privilege to do so, and with purpose
       to defraud * * * shall (1) falsify * * * any writing, computer softward, data,
       or record; (2) utter any writing or record, knowing it to have been tampered
       with as provided in division (A)(1) of this section.

       {¶24} Dilley contends that his convictions were not supported by sufficient

evidence and against the manifest weight of the evidence because the state failed to prove

that Montgomery suffered from dementia and was not capable of making an informed

decision about her finances. He argues that no one ever gave Montgomery a cognitive

test that indicated she was unable to make reasonable decisions, she was never declared

incompetent by a court, and was never placed in the dementia ward at Stratford




          Under R.C. 2923.02(A), “[n]o person, purposely or knowingly, * * * shall engage in conduct
       1


that, if successful, would constitute or result in the offense.”
Commons. Accordingly, he contends there was no evidence that Montgomery could not

competently decide to give her estate to him.

      {¶25} Further, he contends that even if Montgomery suffered from dementia, there

was no evidence he knew about the dementia and knowingly took advantage of it. He

asserts that Montgomery signed the amended trust in the lobby of Stratford Commons, a

public place, and there were many people around who knew that she was signing

documents but did not stop her, including her friend John and a staff member from

Stratford Commons who witnessed her signature.         Dilley further contends that it is

apparent he did not defraud Montgomery because the amended trust was never

invalidated, and he received $75,000 as settlement in the interpleader action and is still

the trustee of the amended trust. Dilley’s arguments are without merit.

      {¶26} The evidence at trial regarding Montgomery’s deficient mental faculties and

Dilley’s knowledge of her condition was overwhelming.         Four staff members from

Stratford Commons testified that Montgomery’s mental faculties declined steadily from

her admission to the facility until her death in 2009. Dr. Hilal, Montgomery’s personal

physician at Stratford Commons, testified that Montgomery had moderate to severe

dementia and would not have had the mental capacity in 2008 to make an informed

decision about transferring the assets of her estate. Frances Koleszar, Montgomery’s

friend for more than 40 years, testified that she noticed obvious changes in Montgomery’s

demeanor and ability to carry on a conversation, and that by December 2007,

Montgomery did not even know who she was. Montgomery’s medical records from
those years noted that she was confused and required “maximum assistance” when

making decisions and dealing with financial matters. And significantly, in his deposition

in the interpleader action, which was admitted into evidence, Dilley testified that he had

managed Montgomery’s assets for years, saw her regularly, and was aware of her

declining mental state.

       {¶27} This evidence, combined with (1) Dilley’s false statement to Benjamin, the

notary who witnessed Montgomery’s signature, that the changes would make him the

executor of Montgomery’s will, (2) his failure to disclose to Smith Barney in April 2008

that he was now the sole beneficiary of Montgomery’s trust, and (3) his subsequent

attempts to deny any knowledge about the transaction, unequivocally demonstrates that

Dilley knew of Montgomery’s diminished mental capacity and took advantage of her

condition for his own financial gain.

       {¶28} Dilley’s argument that his receipt of $75,000 in the interpleader action and

the continuing validity of the trust demonstrate he did nothing wrong is not persuasive.

Both David Gareau, counsel for Holy Family Cancer Center, and Save-A-Pet founder

Arthur Kaplansky, testified that the charities settled with Dilley to avoid the cost of

litigation and to gain access to the funds, and that the settlement was not a concession that

Dilley had done nothing wrong.          They testified further that although the charities

conceded that Dilley could remain as trustee, the agreement had no significance because

all trust funds were disbursed as a result of the settlement; thus Dilley is a trustee of a

trust with no assets.
       {¶29} The state offered extensive evidence in this case that with knowledge of

Montgomery’s diminished mental capacity, Dilley took valid will and trust documents,

altered them on his work computer to make himself the sole beneficiary of the trust, and

had Montgomery sign them. Further, the parties stipulated that Dilley then filed the

amended trust documents with the probate court on April 24, 2008. In light of this

evidence, the trial court did not lose its way or create a miscarriage of justice in finding

Dilley guilty of attempted theft and tampering with records.

       {¶30} Dilley’s conviction for perjury was also not against the manifest weight of

the evidence. Under R.C. 2921.11(A), which prohibits perjury, “[n]o person, in any

official proceeding, shall knowingly make a false statement under oath or affirmation * *

* when [the] statement was material.”

       {¶31} The transcript of Dilley’s deposition from the interpleader action, which was

admitted into evidence, demonstrated that on four separate occasions, Dilley testified that

two supervisors or administrators from Stratford Commons witnessed Montgomery’s

signature on the amended trust document. Appellant characterized these people as “the

top people that ran the nursing home.”

       {¶32} Dilley’s statements were material because of the possible inferences to be

drawn from the administrators’ presence or absence: the administrators’ presence at the

signing would support an inference that Stratford Commons had no concern regarding

Montgomery’s competence, whereas the administrators’ absence supports an inference
that Dilley knew that Stratford Commons would not have allowed Montgomery to change

her trust to make Dilley the sole beneficiary.

       {¶33} Dilley’s deposition testimony, however, directly contradicted the trial

testimony of nurse Kennedy-Williams and notary Benjamin. Both Kennedy-Williams

and Benjamin testified that there were no administrators from Stratford Commons either

at or standing around the table when Montgomery signed the amended trust documents.

       {¶34} The weight of the evidence and the credibility of the witnesses are matters

primarily for the trier of fact to assess.       State v. Bradley, 8th Dist. No. 97333,

2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

 In light of Kennedy-Williams’s and Benjamin’s testimony contradicting Dilley’s

deposition testmony, the trial court did not lose its way in finding that Dilley knew his

testimony was false when given and hence, was guilty of perjury.

       {¶35} The first and second assignments of error are therefore overruled.          B.

              Postrelease Control

       {¶36} At sentencing, the trial court advised Dilley that his sentence was subject to

“three years mandatory postrelease control following the completion of your prison

sentence.”

       {¶37} In his third assignment of error, Dilley contends that the matter must be

remanded for a de novo resentencing because the trial court failed to properly impose

postrelease control. Specifically, he contends that the trial court improperly told him that

postrelease control was mandatory, when in fact, for third degree felonies that are not
felony sex offenses and do not involve physical harm to the victim (such as involved

here), postrelease control is discretionary with the parole board.

       {¶38} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,

the Ohio Supreme Court held that where postrelease control was erroneously imposed,

resentencing is limited to the proper imposition of postrelease control.            Id.   The

defendant is not entitled to be resentenced on the entire sentence; only the portion that is

void may be vacated and otherwise amended. State v. Gregley, 8th Dist. No. 97469,

2012-Ohio-3450.

       {¶39} In this case, the trial court admittedly erred in telling Dilley that postrelease

control was mandatory. The journal entry of sentencing, however, correctly stated that

postrelease control was discretionary. Furthermore, defense counsel informed the court

at oral argument that in September 2012, the trial court granted Dilley’s motion for

judicial release and reduced his prison term to two years of community control sanctions

under the control of the probation department. Thus, Dilley is no longer in prison.

       {¶40} Under these circumstances, we hold that any error in the imposition of

postrelease control was harmless. Because the journal entry of sentencing was correct,

Dilley was never actually subject to three years mandatory postrelease control, even

though the trial court so advised him.    Furthermore, Dilley is out of prison and subject

to up to three years postrelease control only if he violates the community control

sanctions, and the court imposes the remainder of the original prison sentence.

Accordingly, the third assignment of error is overruled.
       {¶41} Affirmed.

       It is ordered that appellee recover from appellant costs herein 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 common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

PATRICIA ANN BLACKMON, A.J., and
MELODY J. STEWART, J., CONCUR
