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11th District rejects psychic’s argument that plea hearing was a ‘farce’
TRACEY BLAIR
Legal News Reporter
Published: July 9, 2020
A Lake County trial court did not abuse its discretion by refusing to grant a hearing for post-conviction relief to a Mentor fortune teller convicted of manipulating her clients into giving her at least $1.4 million in cash and valuables.
That’s according to the 11th District Court of Appeals, which affirmed Gina Miller’s eight-year prison sentence.
Miller was charged in a 28-count indictment on Sept. 6, 2016, after a police investigation uncovered impropriety in connection with her fortune-telling business. The charges included felonies for engaging in a pattern of corrupt activity, aggravated theft, telecommunications fraud, identity fraud, securing writings by deception, grand theft and theft.
In March 2017, Miller pleaded guilty to an amended count of aggravated theft, and the remaining counts were dismissed.
At her April 2017 sentencing, Miller agreed to an order requiring her to pay her victims $1.4 million in restitution. All items seized by police from appellant’s home and business were to be forfeited and items distributed to the victims.
On appeal, she argued her sentence was contrary to law because she told trial counsel she wanted to go to trial; that trial counsel told her she would “not be locked up;” that she is poorly educated; and that she never deceived anyone.
Appellate Judge Timothy P. Cannon first noted that in assessing the credibility of affidavit testimony in paper hearings, the trial court should consider (1) whether the judge reviewing the post-conviction relief petition also presided at the trial, (2) whether multiple affidavits appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial.
In his 3-0 opinion, Cannon said the trial court applied the relevant factors.
He then addressed defense counsel’s argument that the plea colloquy should be disregarded because every legal expert knows that plea hearings are scripted.
“Essentially, he contends that plea hearings are a farce and that the words spoken at these hearings should not be given any weight,” Cannon wrote. “First, the defendant does not even allege in her affidavit that she did not understand what she was being told by the court, the questions that were being asked of her, or what the proceeding was about. In addition, she also never states that her answers to the questions she was being asked are not true and that she was just responding to the questions how her lawyer told her to respond, i.e. scripted, or how she thinks the court wanted her to respond.
“Second, if defense counsel’s position is to be adopted, then every plea hearing that takes place daily across the country is an exercise in futility and a complete waste of time. Courts would be in a no-win situation. On the one hand, judges can advise criminal defendants of all of their constitutional rights and the penalties they face, and strictly adhere to the mandates of Crim.R. 11, but should give no weight or consideration to the responses given by the defendants because it should be presumed they really do not understand and are just saying what we want to hear. Under this scenario, if a defendant comes back later and makes self-serving statements that contradict statements made during the hearing, the self-serving statements should be believed, the statements made during the plea should not be considered, and the plea would ultimately have to be vacated. On the other hand, judges can choose not to follow the requirements of Crim.R. 11 and not inquire of the defendants and just let them plead guilty. Obviously, we all know what would happen with this scenario.
“This court refuses to adopt this argument of the defendant’s counsel. It goes without saying that the plea colloquy mandated by Crim.R. 11 is an imperative part of the criminal justice system, and courts that strictly comply with the requirements of Crim.R. 11 must be permitted to rely on the responses provided.”
Eleventh District Judges Thomas R. Wright and Matt Lynch concurred.
The case is cited State v. Miller, 2020-Ohio-332.