[Cite as State v. Montgomery, 2013-Ohio-4193.]



                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99452


                                     STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                           DANIEL F. MONTGOMERY
                                                       DEFENDANT-APPELLANT



                                          JUDGMENT:
                                           AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-433325

        BEFORE: Stewart, A.J., Jones, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                      September 26, 2013
ATTORNEYS FOR APPELLANT

Barry W. Wilford
Sarah M. Schregardus
Kuras, Wilford & Schregardus Co., L.P.A.
492 City Park Avenue
Columbus, OH 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mary H. McGrath
          Saleh S. Awadallah
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

       {¶1} In 2003, defendant-appellant Daniel Montgomery, 1 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 avoid 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 communications. The

court denied the motion to strike and then denied the motion to withdraw the guilty plea

on grounds that most of the claims raised were res judicata because they could have been

raised in earlier proceedings.

       {¶2} 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 attorney-client

privilege. We also agree with the court that issues raised in the motion to withdraw the

guilty plea, even those that claimed actual innocence, could have been raised in earlier




        Montgomery was known as “Brother Dan.” The record indicates that he is referred to as a
       1


Brother in the Franciscan order of priests, a Friar, and a formation student in the order.
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.

       {¶4} The day after the fire, the police questioned Montgomery as part of an arson

investigation.   That questioning did not 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 time 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 informed 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.

       {¶5} Now that they were investigating 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 began 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 minutes before he claimed to

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

help.

        {¶6} 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 maintained a drug trade and purchased a loaded

handgun from the clerk at the counter.

        {¶7} The following day, at 12:15 p.m., Montgomery took his 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. Montgomery 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 number 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.

       {¶9} In December 2003, Montgomery filed a delayed appeal. Appellate counsel

certified that there was no merit to the appeal and, under the authority of Anders 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.

       {¶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 for 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 former R.C.

2953.82(D), which at that time stated that the prosecuting attorney’s disagreement with an

inmate’s request for DNA testing was “final and is not appealable by any person to any

court[.]” The court did not rule on this motion.

       {¶11} In November 2006, Montgomery filed a petition for postconviction relief

and a motion for resentencing. Both motions sought resentencing on grounds that the

court imposed more than the minimum sentence and imposed consecutive sentences in

violation of the United States Supreme Court decision in Blakely 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 counsel was

ineffective for failing to raise sentencing issues relating to his receiving more than the

minimum 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. Montgomery, 8th

Dist. Cuyahoga No. 83914, 2008-Ohio-443, ¶ 6. We also rejected a claim that trial

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

the minimum term and to consecutive sentences. Id. at ¶ 17.

       {¶13} 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.

       {¶14} 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
anyone 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 pastor’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 trauma

to the pastor’s head, suggesting that he had struggled with the murderer; (5) the police

disregarded evidence that a church employee may 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 residue on Montgomery’s clothing

consistent with his having fired a gun; and (7) Montgomery’s interrogation was “a model

of unreliability.”

       {¶15} The state opposed the motion to withdraw the guilty 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 withdraw the plea. To support its argument that

Montgomery failed 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 motion 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. 2317.02(A), that prohibits an attorney from testifying concerning 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 postconviction 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.

       {¶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 Montgomery’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
       {¶18} 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

       {¶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. Trial 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 leads, they would

have taken more seriously Montgomery’s claims of actual innocence and investigated his

mental state when confessing to the murder.

       {¶20} The trial attorney’s affidavit stated in relevant part:

       3. Affiant avers that during the pre-trial discovery process, he and
       co-counsel received supplemental discovery from the State that included
      thirteen pages of Sprint cell phone records. Affiant knew that the cell
      phone records were those of the victim’s cell phone and that the victim’s
      cell phone was on and receiving calls after the victim’s death.
      Additionally, Affiant knew that the person in possession of the victim’s cell
      phone was a neighborhood resident.

      4. Affiant avers that he knew the details of the Cleveland Police
      investigation into the victim’s murder, including the investigation into
      Montgomery’s explanation that he purchased the firearm used to murder the
      victim from a male employee of a local market. Affiant knew that
      Cleveland Police detectives interviewed the store owner of the market, and
      that owner denied having an employee matching the description provided
      by Montgomery. Affiant also knew 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 of burnt money being
      found outside of a strongbox in the fire scene.

      6. Affiant avers that the above-stated information was discussed with
      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

communication 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 “information relating to the

representation.”     See Prof.Cond.R. 1.6, comment 2.       In 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 intended
to be confidential. State v. Post, 32 Ohio St.3d 380, 387, 513 N.E.2d 754 (1987);

Cannell v. Rhodes, 31 Ohio App.3d 183, 509 N.E.2d 963 (8th Dist.1986).

       {¶22} 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

Montgomery. Admittedly, the affidavit did not state precisely what the trial attorney

“discussed” with Montgomery. But the affidavit contains details 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

       {¶23} Despite the court’s error in finding that the affidavit did not reveal any

communications between Montgomery and the trial attorney, the state argues that an

exception to the privilege applies in the form of the self-protection exception.

       {¶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 &

Dempsy, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St.3d 161, 2010-Ohio-4469, 937

N.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-client

privilege exists that permits “an attorney to testify concerning attorney-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 ¶

48.

       {¶25} In its opposition to Montgomery’s motion to strike the affidavit of trial

counsel, the state erroneously relied on the self-protection exception set forth in Squires,

Sanders & Dempsey 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 & Dempsey made it clear that the self-protection exception applies only in

“litigation between the attorney and client.” A claim of ineffective assistance of counsel

is not litigation between the attorney and client, so the self-protection exception does not

apply in this case.

                                             D

       {¶26} Even though the self-protection exception does not expressly apply, the

principle behind the exception has been applied in criminal postconviction proceedings to

find that a petitioner who raises 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 v. Howard, 2d Dist. Montgomery No. 8001,

1984 Ohio App. LEXIS 8892 (Jan. 4, 1984).

       {¶27} In Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001), the United States

Court of Appeals for the Eleventh Circuit recognized that the attorney-client privilege is

waived in a habeas corpus proceeding when a defendant asserts a claim of ineffective

assistance of counsel. The court stated:

       [W]hen a habeas corpus petitioner * * * launches an attack on the
       reasonableness of his attorney’s strategy in conjunction with a claim of
       ineffective assistance of counsel, he puts at issue his communications with
       counsel relating to those strategic choices. As Strickland [v. Washington,
       466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] itself emphasizes,
       the “reasonableness of counsel’s actions may be determined or substantially
       influenced by the defendant’s own statements or actions. Counsel’s
       actions are usually based, quite properly, * * * on information supplied by
       the defendant * * * [and] * * * inquiry into counsel’s conversations with the
       defendant may be critical to a proper assessment of counsel’s * * *
       litigation decisions.” 466 U.S. at 691, 104 S.Ct. at 2066; see also Chandler
       [v. United States], 218 F.3d [1305] at 1318-19 [(11th Cir. 2000)].
       (“Because the reasonableness of counsel’s acts * * * depends critically
       upon information supplied by the [petitioner] or the [petitioner’s] own
       statement or actions, evidence of a petitioner’s statements and acts in
       dealing with counsel is highly relevant to ineffective assistance claims.”
       (Citations and internal quotation marks omitted.)). Although the precise
       boundaries of the waiver will vary from case to case, and in many instances
       will require careful evaluation by the district court, there should be no
       confusion that a habeas corpus petitioner alleging that his counsel made
       unreasonable strategic decisions waives any claim of privilege over the
       contents of communications with counsel relevant to assessing the
       reasonableness of those decisions in the circumstances.

Id. at 1179.

       {¶28} 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 postconviction petitioner 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 that 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.” Tasby v. United States, 504 F.2d 332 at 336 (8th Cir. 1974).

“In 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 v. Commr. of Correction,

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

       {¶29} 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 v. Everett, 319 Mich. 475, 29 N.W.2d 919 (Mich. 1947) (finding the former

attorney’s affidavit disclosing certain confidential communications to be admissible

following the client’s motion for new trial on the ground that plaintiff’s former counsel

was incompetent); Ex parte Lewis, 36 So.3d 72 (Ala.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 (Minn.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

       {¶30} Although an ineffective 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

proceeding 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.

       {¶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 the representation of a
       client, including information protected by the attorney-client privilege under
       applicable law, unless the client gives informed consent, the disclosure is
       impliedly authorized in order to carry out the representation, or the
       disclosure is permitted by division (b) or required by division (c) of this
       rule.

 (Emphasis sic.)

       {¶32} Prof.Cond.R. 1.6(a) is not absolute. Prof.Cond.R. 1.6(b) states:
       A lawyer may reveal information relating to the representation of a client,
       including information protected by the attorney-client privilege under
       applicable law, to the extent the lawyer reasonably believes necessary for
       any of the following purposes:

       ***

       (5) to establish a claim or defense on behalf of the lawyer in a controversy
       between the lawyer and the client, to establish a defense to a criminal
       charge or civil claim against the lawyer based upon conduct in which the
       client was involved, or to respond to allegations in any proceeding,
       including any disciplinary matter, concerning the lawyer’s representation of
       the client[.]

       {¶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

criminal postconviction motion one that the lawyer must defend. Id. at 3-4. The ABA

did find, however, that the third exception applies 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.” Id. at 4.

       {¶34} 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 testimony or

otherwise, 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 confidentiality 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 counsel would disclose information that could not ultimately be
        disclosed in the adjudicative 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.” Id. 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 ruling. Id. at 2.

        {¶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

admissibility of evidence.     “A violation of attorney disciplinary rules is not of

constitutional magnitude and consequently suppression is not constitutionally required.”

United States v. Guerrerio, 675 F.Supp. 1430, 1433 (S.D.N.Y.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.

      {¶37} Even if we did have the 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.

       {¶38} Prof.Cond.R. 1.6(b)(5) does not require any judicial intervention as a

prerequisite for disclosing client information. Nevertheless, there are limitations built

into Prof.Cond.R. 1.6(b)(5) 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.R. 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 “[a] disclosure adverse to the client’s interest should
be no greater than the lawyer reasonably believes necessary to accomplish the purpose.”

So even if a lawyer chooses to disclose information in response to a charge of ineffective

assistance of counsel, the disclosure must be limited to information that refutes the

specific charge. This is not to say that a lawyer should not first seek judicial approval

before disclosing information, but only that it 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.

       {¶39} Our opinion is shared by several state bar associations that have addressed

ABA Formal Opinion 10-456. In Opinion 364, the District of Columbia Bar Association

stated that “we do not share the [ABA’s] view that extrajudicial 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.R. 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 lawyer whose conduct has been

       placed in issue by a former client’s ineffective assistance of counsel [IAC]

       claim to make, without judicial approval or supervision, such disclosures of

       information protected by Rule 1.6 as are reasonably necessary to respond to

       the client’s specific allegations about the lawyer’s performance. Even so, a

       lawyer should reflect before making disclosures of protected information to

       prosecutors, courts, or others. A lawyer’s confidentiality obligations to her

       former client are broader than the attorney-client privilege. Although the
       former client’s claim likely waives the evidentiary privilege, that alone does

       not eliminate the broader confidentiality obligation owed under Rule 1.6.

       Nor does the limited “self-defense” exception to confidentiality in Rule

       1.6(e)(3) open the door to unlimited disclosures to prosecutors, courts or

       others of protected information. The rule allows a lawyer to disclose

       protected information only to the extent “reasonably necessary” to respond

       to “specific allegations” by the former client. Reasonableness is a

       fact-bound issue about which others may later disagree. Lawyers who are

       uncertain about the permissibility of disclosing protected information in

       response to an IAC claim should consider seeking independent 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

strictly 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.”).
       {¶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 Montgomery,

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

       {¶41} 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

       {¶42} The usual formulation of res judicata in postconviction proceedings 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, ¶ 59, citing State v.

McGee, 8th Dist. Cuyahoga No. 91638, 2009-Ohio-3374, ¶ 9.

                                              B

       {¶43} None 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 motion. See State v.

Smith, 17 Ohio St.3d 98, 101, 477 N.E.2d 1128 (1985), fn. 1.

       {¶44} 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).

       {¶45} As the court found 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 something 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.”

       {¶46} Montgomery complains that the state failed to designate the cell 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 Montgomery, 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, Montgomery

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.

       {¶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 Montgomery entered his guilty plea, so Montgomery was necessarily

charged with knowledge of those records. And to the extent that Montgomery became

aware that there was a discrepancy between the cell phone records in his trial attorney’s

case file and 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.
       {¶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 in prior postconviction proceedings.       The court did not err by finding the

ineffective assistance of counsel claims were barred by res judicata.

                                            IV

       {¶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

him 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

       {¶52} In State v. Simpkins, 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 substantial justice, see State v.
       Szefcyk (1996), 77 Ohio St.3d 93, 95, 1996-Ohio-337, 671 N.E.2d 233,
       citing Federated Dept. Stores, Inc. v. Moitie (1981), 452 U.S. 394, 401, 101
       S.Ct. 2424, 69 L.Ed.2d 103, that “‘is to be applied in particular situations as
       fairness and justice require, and that * * * is not to be applied so rigidly as
       to defeat the ends of justice or so as to work an injustice.’” Grava v.
       Parkman Twp. (1995), 73 Ohio 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 v.
       McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 202, 2 OBR 732,
       443 N.E.2d 978.

Id. at ¶ 25.

       {¶53} It is important to understand Simpkins 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

mention postrelease control made the sentence void under State v. Bezak, 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 court 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.

       {¶54} In State v. Tinney, 5th Dist. Richland No. 2011 CA 41, 2012-Ohio-72, the

court of appeals cited Simpkins for the proposition that res judicata would not bar a

defendant from raising inconsistencies with his 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]he confluence in this case of lingering concerns by some police officials of appellee’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 ¶ 31.

                                            B

       {¶55} Montgomery argues that his claims are identical to those presented in

Tinney, so we should follow that case and allow him to withdraw his guilty plea. We

disagree.   Neither Simpkins nor Tinney make a convincing case for abandoning

application of res judicata in this postconviction proceeding in which the issues

Montgomery raises were either raised or could have been raised previously.

       {¶56} It is unclear why the Supreme Court decided Simpkins 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 judgment of conviction.” Perry,

supra. 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 of res judicata, and

may be reviewed at any time, on direct appeal or collateral attack.” State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus. See
also State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960, syllabus. In

light of this subsequent precedent, Simpkins 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 doctrine of res judicata that we find it

unpersuasive.

        {¶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 in 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 his plea “was other than

voluntary.” Id. at ¶ 30.

        {¶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 major 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 ¶ 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 psychotic)

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 in the third motion to

withdraw the guilty plea were res judicata. Id. at ¶ 31. It did, however, remand the case

to the trial court for the purpose of conducting a hearing on the motion to withdraw the

plea.

                                              C

        {¶60} 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

        {¶61} Because this is a postsentence motion 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-Ohio-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 the 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

       {¶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.

       {¶63} 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. 600, 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.

       {¶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,

Montgomery had a motive to commit murder.

       {¶65} 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.

       {¶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 attorney 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 from 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 shortly 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 in my
       thinking, causing me to make false statements on 12/08/02 at the police
       interrogation. At that time I was suffering from delusions of grandeur that
       perhaps if I was no longer to be a Franciscan, then I was to be a martyr for a
       sinner, the killer and arsonist who committed the crime I was charged with.
       I gave my statements to the police in such a way that they could convict me.

       {¶68} Before entering his guilty plea, Montgomery 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.”

       {¶69} But he did enter a guilty plea. And that plea was not rushed — ten months

elapsed between his confession 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. Coyle, 260 F.3d 684, 708 (6th Cir.2001), quoting United States v. Chambers,

944 F.2d 1253, 1264 (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. Johnson, 8th Dist. Cuyahoga

No. 83350, 2004-Ohio-2012, ¶ 38, citing State v. Lambros, 44 Ohio App.3d 102, 103, 541

N.E.2d 632 (8th Dist.1988).

      {¶70} We therefore find that Montgomery cannot convincingly argue that his

confession and guilty pleas were the product of trial counsel’s failure to investigate. No

manifest injustice has been shown. The court did not abuse its discretion by denying the

motion to withdraw the guilty plea.

      {¶71} Judgment affirmed.

      It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

LARRY A. JONES, SR., J., and
EILEEN A. GALLAGHER, J., CONCUR
