State v. Pelfrey

186 N.E.3d 261

STATE of Ohio, Plaintiff-Appellee

v.Gregory D. PELFREY, Defendant-Appellant

No. 29289

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on March 11, 2022

MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.

GREGORY D. PELFREY, Inmate No. A732-759, Noble Correctional Institution, 15708 McConnelsville Road, Caldwell, Ohio 43724, Defendant-Appellant, Pro Se.

OPINION

WELBAUM, J.

{¶ 1} Defendant-Appellant, Gregory Pelfrey, appeals from a trial court order overruling his request for leave to file a motion for new trial. In support of his appeal, Pelfrey has presented 16 assignments of error, many of which are repetitive and are barred by res judicata. For the reasons discussed below, we conclude that the trial court did not err in refusing to let Pelfrey file a motion for a new trial. Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

A. Original Proceedings in State Court

{¶ 2} Our prior opinion in this case stated that Pelfrey was indicted in November 2015 on the following charges: "(1) theft from an elderly or disabled adult ($37,500 or more, but less than $150,000/ beyond scope of consent), in violation of R.C. 2913.02(A)(2) (Count 1); (2) forgery (uttering a forged power of attorney), in violation of R.C. 2913.31(A)(3) (Count 2); and (3) theft from an elderly or disabled adult ($37,500 or more, but less than $150,000/ deception), in violation of R.C. 2913.02(A)(3)." State v. Pelfrey , 2d Dist. Montgomery No. 27474, 2018-Ohio-2427, 2018 WL 3090457, ¶ 16 ( Pelfrey I ).

{¶ 3} These charges related to a power of attorney (POA) that Pelfrey's 73-year old grandmother, Judith Daniel, had signed in 2014. Pelfrey used the POA to obtain a $75,000 loan from a private lender (ostensibly to make repairs to Daniel's property), and a mortgage lien in that amount was placed on Daniel's property. However, Daniel never received any money and no repairs were made. Ultimately, Daniel could not pay back the mortgage; she then executed a quit claim deed to the lender, losing the home she had lived in since 1967. Id. at ¶ 4-14.

{¶ 4} Regarding the POA, our opinion related the following additional facts:

National Title Company in Centerville, Ohio, closes loans for people when they buy and sell real property. National Title's owner, Ray Woodie, also arranges loans for individuals through a network of private lenders; these loans usually involve situations where the borrower intended to "flip" the property, i.e., sell it again quickly. Woodie had previously arranged for private loans for Greg Dart, an acquaintance of Daniel's grandson, Pelfrey. In February 2014, Dart contacted Woodie, asking if Woodie could arrange for Pelfrey to obtain a private loan. Pelfrey told Woodie that he was going to fix up his grandmother's house. Woodie arranged for Pelfrey to obtain a $75,000 loan from Troy Pinkerton, a participant in Woodie's private network of lenders; Daniel's house would serve as security for the loan.

On March 31, 2014, Pelfrey went to National Title to close on the private loan. When Pelfrey did not bring his grandmother to National Title and did not have a power of attorney for her, Woodie told Pelfrey that it was necessary to have Daniel's power of attorney to close on the loan.

According to Daniel, that same day (March 31), Pelfrey approached her about signing a power of attorney. Pelfrey told Daniel that he had sold his business to Dart for $100,000, but that Dart was not going to pay the first $50,000; instead, Dart would fix Daniel's house. Pelfrey told Daniel that he needed her to sign a power of attorney so that he could authorize Dart to perform the work. Daniel testified that, on March 31, she picked up Pelfrey at his girlfriend's residence, and they drove to a bank where Daniel had a document notarized granting Pelfrey a power of attorney for that one day. Daniel was apprehensive about the power of attorney and called Pelfrey afterward to see if he had used it; Pelfrey told Daniel that he had not.

On April 1, 2014, Woodie received a phone call from a man identifying himself as Pelfrey, asking Woodie to explain the transaction to his grandmother. Woodie spoke to the woman on the phone, and he believed he was talking to Daniel. At trial, Daniel denied that she had spoken with Woodie.

Later that day (April 1), Pelfrey returned to National Title with the power of attorney. While there, Pelfrey, as attorney in fact for Daniel, closed on a one-year $75,000 loan from Pinkerton; neither Daniel nor Pinkerton was present. Under the terms of the promissory note, Daniel agreed to pay Pinkerton $991.13 for 12 months, followed by a balloon payment of $71,390.40 on April 1, 2015. The note was secured by a mortgage on Daniel's residence. Pelfrey received a check made payable to Daniel for $71,174 from National Title. (The check was not for the full $75,000 due to closing costs.) Daniel testified that she never would have signed the power of attorney if she knew Pelfrey were going to obtain a mortgage loan and that she only signed the power of attorney because of his statement that it was needed for Dart to do repairs on her home.

The power of attorney presented to Woodie and recorded with the Warren County Recorder's Office was dated and notarized on April 1, 2014. At trial, Daniel acknowledged that her initials and signature were on the document, but she said it looked different from the one she had signed. Daniel had previously told Detective Daniel Osterfeld of the Centerville Police Department that Pelfrey had approached her about the power of attorney on April 1, not March 31.

The record does not reflect when the check to Daniel was cashed and how the check was spent, but no money was provided to Daniel. Daniel testified that Dart and Pelfrey came to her home a couple of times to discuss possible repairs. Daniel called Pelfrey the day after they had spoken about the repairs, and she told Pelfrey to stop the work on her house, because she did not think $50,000 would cover it. Daniel testified that somebody built a small deck on the front of her house (but did not finish it), and a little room was built in her garage; she thought that the builder worked for Dart. It is unclear when that work on her house occurred.

On June 13, 2014, Daniel learned that the power of attorney had been used to secure a loan and that there was a lien on her house. Daniel also received correspondence from the Warren County Recorder's Office, which prompted her to call Pelfrey; Pelfrey came to Daniel's residence, took the correspondence, and said that he would take care of it. However, Daniel repeatedly received bills from Pinkerton that she was unable to pay.

At some point, Daniel spoke with Detective Osterfeld about the power of attorney and the lien on her house. Osterfeld spoke with Pelfrey about the March 31/April 1 transaction in late November 2014.

Pelfrey I , 2d Dist. Montgomery No. 27474, 2018-Ohio-2427, at ¶ 5-13.

{¶ 5} In November 2015, Pelfrey was indicted on three charges associated with this transaction. At the time of the indictment, Pelfrey was incarcerated in Kentucky on unrelated charges and was not served with the indictment. However, Pelfrey later asked to be returned to Ohio to face the charges; he was then returned and arraigned in the trial court in July 2016. Id. at ¶ 16 and 19.

{¶ 6} Previously, in February 2016, Pelfrey had convinced a girlfriend to prepare a false affidavit to help him get the charges dismissed. The affidavit claimed the girlfriend had a sexual relationship with Dart, that Dart was "behind" the POA and loan, and that Dart had misled Pelfrey.¹ After the girlfriend gave the police information about this affidavit, the State filed another indictment in October 2016, charging Pelfrey with tampering with evidence. Id. at ¶ 15, 18, 20, and 27.

{¶ 7} In late summer 2016, Pelfrey convinced another woman to prepare a forged agreement related to the loan. This agreement, which was dated April 1, 2014, was designed to implicate Dart for the alleged crimes and was given to Pelfrey's attorney, who forwarded it to prosecutors. Id. at ¶ 22-25. In addition, Pelfrey convinced this woman to text an individual "(presumably Dart)" to instruct him not to lie about the transaction. However, the woman did not know who she was texting. Id. at ¶ 24. After learning these facts, the State filed yet another indictment in mid-November 2016, charging Pelfrey with tampering with evidence. Id. at ¶ 28.

{¶ 8} In early 2017, the court held a jury trial on all the charges, and the jury found Pelfrey guilty as charged. After merging some counts, the court sentenced Pelfrey to a total of 13 years in prison. Id. at ¶ 33-34. Pelfrey then appealed, raising five assignments of error, including "that (1) the trial court erred in excluding his expert witness, (2) the trial court erred in denying his motion to continue the trial, (3) his convictions were based on insufficient evidence and against the manifest weight of the evidence, (4) the trial court violated his right to a speedy trial, and (5) the trial court erred in allowing parol evidence regarding the power of attorney." Id. at ¶ 2. After reviewing the record, we rejected the assignments of error and affirmed the convictions on June 22, 2018. Id.

{¶ 9} Pelfrey appealed our judgment to the Supreme Court of Ohio, but the court declined review. See State v. Pelfrey , 153 Ohio St.3d 1475, 2018-Ohio-3637, 106 N.E.3d 1261.

B. Post-Conviction Proceedings in State Court

{¶ 10} As noted, we affirmed Pelfrey's convictions in June 2018. While the direct appeal was pending, Pelfrey filed a motion for post-conviction relief in the trial court on March 27, 2018, alleging ineffective assistance of counsel, prosecutorial misconduct, and...