[Cite as State v. Dilley, 2019-Ohio-3574.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 Plaintiff-Appellee, : 

 No. 108098 

 v. : 

 

WILLIAM DILLEY, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: September 5, 2019 

 

Civil Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-12-558185-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Frank Romeo Zeleznikar and James A. 

Gutierrez, Assistant Prosecuting Attorneys, for appellee. 

William Dilley, pro se. 

FRANK D. CELEBREZZE, JR., J.: 

Defendant-appellant, William Dilley (“appellant”) brings the instant 

appeal challenging the trial court’s judgment denying his motion to “void, vacate, 

set aside, or correct judgment[.]” Specifically, appellant argues that the trial court 

violated his due process rights by disregarding newly discovered evidence, erred by 
denying his motion without holding a hearing, and erred by disregarding this court’s 

judgment in State v. Dilley, 8th Dist. Cuyahoga No. 106468, 2018-Ohio-1504. After 

a thorough review of the record and law, this court affirms. 

I. Factual and Procedural History 

The instant appeal pertains to the trial court’s November 16, 2018 

judgment denying appellant’s third petition for postconviction relief. 

In Cuyahoga C.P. No. CR-12-558185-A, appellant was charged in a fourcount indictment on January 26, 2012, with tampering with records, perjury, 

attempted theft, and theft. The charges arose from appellant’s conduct in his 

capacity as a financial advisor for Smith Barney prior to his termination in 2009. 

As a financial advisor, appellant counseled clients with investments. 

One of Dilley’s clients was Betty Montgomery, a 92-year-old woman who suffered 

from dementia. Appellant began managing Montgomery’s investments in 1995 

when she executed a will and a trust. State v. Dilley, 8th Dist. Cuyahoga No. 98098, 

2012-Ohio-5288, ¶ 3-4 (“Dilley I”).1 In April 2008, appellant amended 

Montgomery’s trust, naming himself the sole beneficiary of the trust. See State v. 

Dilley, 8th Dist. Cuyahoga No. 99680, 2013-Ohio-4480, ¶ 2 (“Dilley II”). At the 

time of her death in January 2009, the value of Montgomery’s amended trust was 

approximately $750,000. Dilley I at ¶ 15. After the assets were divided between two 

 1 See this court’s opinion in Dilley I for a full recitation of the factual history and 

the evidence presented during appellant’s bench trial. 
charitable organizations,2 appellant ultimately received $75,000 pursuant to the 

amended trust. 

Following a bench trial, the trial court found appellant guilty on the 

tampering with records, perjury, and attempted theft counts. In February 2012, the 

trial court sentenced appellant to an aggregate prison term of two years. 

On March 15, 2012, appellant filed a direct appeal challenging the trial 

court’s judgment. Dilley I. He argued that his convictions were not supported by 

sufficient evidence and against the manifest weight of the evidence. On 

November 16, 2012, this court affirmed appellant’s convictions. 

On October 23, 2012, appellant filed his first petition to vacate or set 

aside the judgment of conviction and sentence. Therein, appellant argued, in 

relevant part, that the final settlement in the probate court proceedings, Citigroup 

Global Markets, Inc. v. Estate of Betty Montgomery, Cuyahoga P.C. No. 2009 ADV 

0146836 (Sept. 2, 2010), determined that Montgomery’s amended trust was valid 

and barred criminal prosecution pertaining to the validity of the amended trust. 

Appellant also alleged that his trial counsel was ineffective for failing to present 

information and expert testimony on Montgomery’s incompetency and that the 

probate court had exclusive jurisdiction over the matter. 

The trial court denied appellant’s request for postconviction relief on 

February 20, 2013. Appellant filed an appeal challenging the trial court’s judgment 

 2 Holy Family Cancer Home and Save-A-Pet. Dilley I at ¶ 4. 
on March 21, 2013. Dilley II. On appeal, this court affirmed the trial court’s 

judgment on October 10, 2013, concluding that appellant’s claims were untimely 

and barred by res judicata. Id. at ¶ 13. 

On January 19, 2017, appellant filed a second petition for 

postconviction relief, captioned “motion to void judgment, motion to vacate or set 

aside judgment.” Therein, he argued again that his convictions were void because 

probate court had exclusive jurisdiction over the matter, the probate settlement 

barred criminal prosecution, and that certain facts presented at trial were not 

accurate. 

Following a hearing on October 24, 2017, the trial court denied 

appellant’s motion to void judgment on October 25, 2017. Appellant filed an appeal 

challenging the trial court’s judgment on November 6, 2017. Dilley, 8th Dist. 

Cuyahoga No. 106468, 2018-Ohio-1504 (“Dilley III”). On April 19, 2018, this court 

affirmed the trial court’s judgment, concluding that Dilley failed to meet the 

requirements for successive petitions for postconviction relief set forth in R.C. 

2953.23 and that his claims were barred by res judicata. Dilley III at ¶ 16-17. 

On October 17, 2018, appellant filed a third petition for postconviction 

relief, captioned “motion to void, vacate, set aside, or correct judgment based on 

newly discovered evidence.” The trial court denied appellant’s motion on November 

19, 2018. 

It is from this judgment that appellant filed the instant appeal on 

January 11, 2019. He assigns three errors for review: 
I. The [t]rial [c]ourt erred and abused its discretion and deprived the 

[a]ppellant of his due process rights by not granting the [a]ppellant a 

hearing and not specifically ruling on Betty Montgomery’s competency 

for the time period in question or the date of importance in its 

judgment entries thereby making crucial evidence inadmissible and 

preventing the [a]ppellant from discovering or presenting the ground 

supporting the motion for new trial or voiding judgment. The [t]rial 

[c]ourt also abused its discretion and committed a prejudicial error by 

failing to hear or rule on new evidence brought as a result of the April 

19, 2018 Case No. 106468 decision in the Eighth District Court of 

Appeals [f]inding Betty R. Montgomery retroactively incompetent 

during the period of importance thereby activating Betty R. 

Montgomery springing [d]urable [g]eneral [p]ower of [a]ttorney 

retroactively to that time period. 

II. The [t]rial [c]ourt erred and abused its discretion by ignoring the 

Court of Appeals judgment entry and opinion that ruled Betty 

Montgomery to be retroactively incompetent during the time period in 

question thereby retroactively activating the 1995 springing durable 

general power of attorney giving the [a]ppellant legal authority as 

attorney in fact to create new or amended trusts for Betty Montgomery. 

The [t]rial [c]ourt’s 2012 final judgment did not determine if Betty 

Montgomery was incompetent when she executed the 2008 Amended 

and Restated Trust and Will on the date of importance or if the 2010 

[p]robate judgment was void thereby preventing the [a]ppellant from 

presenting evidence and violating his due process rights. 

III. The [t]rial [c]ourt erred and abused its discretion by denying the 

[a]ppellant’s [m]otion and evidence of the [appellant] conviction being 

void under the [v]oid-for-[v]agueness doctrine. 

II. Law and Analysis 

The motion that is at issue in this appeal was captioned, “motion to 

void, vacate, set aside, or correct judgment and to add newly discovered evidence 

which by due diligence could not be discovered in time under Rule 59(B), R.C. 

2953.23(A)(1)(a) and (b) and R.C. 2953.21(A).” Notwithstanding its caption, the 

motion is a petition for postconviction relief, because it was filed subsequently to 

appellant’s direct appeal and appellant is seeking vacation or correction of the trial 
court’s judgment on the basis that his constitutional rights have been violated. See 

State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus. 

This court reviews a trial court’s judgment denying a petition for 

postconviction relief for an abuse of discretion. State v. Calhoun, 86 Ohio St.3d 279, 

281, 714 N.E.2d 905 (1999). A trial court abuses its discretion when its judgment is 

unreasonable, arbitrary, or unconscionable. State v. White, 118 Ohio St.3d 12, 

2008-Ohio-1623, 885 N.E.2d 905, ¶ 46. ‘“[A] trial court’s decision granting or 

denying a postconviction petition filed pursuant to R.C. 2953.21 should be upheld 

absent an abuse of discretion; a reviewing court should not overrule the trial court’s 

finding on a petition for postconviction relief that is supported by competent and 

credible evidence.”’ Id. at ¶ 45, quoting State v. Gondor, 112 Ohio St.3d 77, 2006-

Ohio-6679, 860 N.E.2d 77, ¶ 58. 

The record reflects that appellant’s motion is untimely. When he filed 

his petition in October 2018, the statutory deadline for filing a timely petition for 

postconviction relief had long since passed. R.C. 2953.21(A)(2) provides that a 

postconviction petition “shall be filed no later than three hundred sixty-five days 

after the date on which the trial transcript is filed in the court of appeals in the direct 

appeal of the judgment of conviction * * *.” 

Furthermore, “[a] convicted defendant may file only one 

postconviction petition within the prescribed 365-day window, and may not file an 

untimely or successive petition unless the defendant meets a high burden of 

demonstrating the ‘specific, limited circumstances’ of R.C. 2953.23(A).” State v. 
Vaughn, 8th Dist. Cuyahoga No. 107746, 2019-Ohio-798, ¶ 11, quoting State v. 

Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 22. The current 

motion is appellant’s third petition for postconviction relief. Accordingly, 

appellant’s petition was both untimely and successive. 

R.C. 2953.23(A), governing untimely and successive petitions for 

postconviction relief, provides, in relevant part: 

(A) Whether a hearing is or is not held on a petition filed pursuant to 

section 2953.21 of the Revised Code, a court may not entertain a 

petition filed after the expiration of the period prescribed in division 

(A) of that section or a second petition or successive petitions for 

similar relief on behalf of a petitioner unless division (A)(1) or (2) of 

this section applies: 

(1) Both of the following apply: 

(a) Either the petitioner shows that the petitioner was unavoidably 

prevented from discovery of the facts upon which the petitioner must 

rely to present the claim for relief, or, subsequent to the period 

prescribed in division (A)(2) of section 2953.21 of the Revised Code or 

to the filing of an earlier petition, the United States Supreme Court 

recognized a new federal or state right that applies retroactively to 

persons in the petitioner’s situation, and the petition asserts a claim 

based on that right. 

(b) The petitioner shows by clear and convincing evidence that, but for 

constitutional error at trial, no reasonable factfinder would have found 

the petitioner guilty of the offense of which the petitioner was convicted 

or, if the claim challenges a sentence of death that, but for 

constitutional error at the sentencing hearing, no reasonable factfinder 

would have found the petitioner eligible for the death sentence. 

After reviewing the record, we find that appellant has failed to 

demonstrate that any of these exceptions apply in this case. Appellant raised two 

propositions of law in his petition. 

A. Dilley III 
In his first proposition of law, and in his first and second assignments 

of error, appellant appears to argue that in Dilley III, this court ruled that 

Montgomery was incompetent on or before April 2008, when she signed the 

amended trust and named appellant the sole beneficiary, and as a result, his conduct 

was not improper because he was acting as her power of attorney. Additionally, in 

his reply brief, appellant appears to argue that the Dilley III opinion, issued in April 

2018, was the first determination made regarding Montgomery’s incompetency. He 

appears to assert that because the trial court in the criminal prosecution and the 

probate court did not determine whether Montgomery was competent in April 2008 

when she executed the amended trust, he was prevented from presenting arguments 

regarding her competency or the springing durable power of attorney in her trust. 

He appears to offer the Dilley III decision as newly discovered evidence that he had 

been unavoidably prevented from discovering. After reviewing the record, we find 

no merit to appellant’s first proposition of law. 

As an initial matter, a review of this court’s opinion in Dilley III

reflects that the court did not address the issue of Montgomery’s competency at the 

time the amended trust was executed in April 2008. Furthermore, this court did not 

determine, either explicitly or implicitly, whether Montgomery was competent at the 

time. 

Nevertheless, to the extent that appellant argues that he was 

previously unable to present arguments pertaining to Montgomery’s competency 

because neither the probate court nor the trial court made a specific determination 
that she was or was not competent, this argument is unsupported by the record. As 

this court noted in Dilley I, 

[t]he 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. 

(Emphasis added.) Dilley I at ¶ 26. 

Based on this “overwhelming” evidence presented at trial regarding 

Montgomery’s mental deficiencies, appellant could have, and should have presented 

his arguments regarding Montgomery’s competency and the power of attorney in 

her trust on direct appeal or in his first petition for postconviction relief. However, 

he failed to do so. As a result, these arguments are barred by res judicata. 

Under the doctrine, a defendant who was represented by counsel is 

barred from raising an issue in a petition for postconviction relief if the 

defendant raised or could have raised the issue at trial or on direct 

appeal. [Reynolds], 79 Ohio St.3d 158, [at] 161, 679 N.E.2d 1131; State 

v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus. 

According to Szefcyk, res judicata is applicable to all postconviction 

proceedings. Id. at 95. A trial court may dismiss a petition for 

postconviction relief without holding an evidentiary hearing when the 
claims raised in the petition are barred by the doctrine of res judicata. 

Szefcyk at syllabus. 

(Emphasis added.) Vaughn, 8th Dist. Cuyahoga No. 107746, 2019-Ohio-798, at 

¶ 14; see State v. Mack, 8th Dist. Cuyahoga No. 101261, 2018-Ohio-301, ¶ 15 (res 

judicata also prevents relief on successive petitions for postconviction relief that 

raise issues that were or could have been raised in the original petition). 

This court did not address Montgomery’s competency in Dilley III, 

nor did this court determine that she was, in fact, incompetent in April 2008. 

Finally, appellant was not unavoidably prevented from presenting arguments 

pertaining to Montgomery’s competency prior to this court’s April 2018 judgment 

in Dilley III. 

For all of the foregoing reasons, appellant’s first and second 

assignments of error are overruled. 

B. Vagueness 

In his second proposition of law and third assignment of error, 

appellant appears to raise an argument pertaining to the due process doctrine 

prohibiting vagueness. Specifically, he contended in his motion that “[t]he criminal 

and civil laws for determining if Betty Montgomery lacked mental capacity and if 

taking instructions from her is a criminal act are vague.” He does not specify which 

criminal statutes or civil laws to which he is referring. 

In the instant appeal, appellant argues in his reply brief that “[t]he 

Civil and Criminal law does not provide any guidance or notice for a layman or any 
person to know what they can and cannot do in circumstances found in the case 

before the court.” He goes on to contend that he “simply produced a[n] Amended 

and Restated Trust Agreement at the request of [his client],” and that he believed 

that Montgomery was competent to do so. Appellant’s reply brief at 6. 

Appellant’s arguments are barred by res judicata. He could have 

raised his constitutional vagueness argument on direct appeal or in his first petition 

for postconviction relief. He failed to do so. 

Appellant’s vagueness argument is also unsupported by the record. 

As noted above, appellant acknowledged in his deposition in the probate 

proceedings that he was aware of Montgomery’s declining mental state. Dilley I at 

¶ 26. 

For all of the foregoing reasons, we overrule appellant’s third 

assignment of error. 

C. Remaining Claims 

 To the extent that appellant challenges the trial court’s jurisdiction in 

the criminal proceedings on the basis that the probate court had exclusive 

jurisdiction over the proceedings, this argument is barred by res judicata. In his 

second petition for postconviction relief, appellant argued that 

his convictions are void because the General Division of the Court of 

Common Pleas had no jurisdiction over this matter that he 

characterizes as a “trust and will contest.” He maintains that the 

general division had no jurisdiction to adjudicate the client’s 

competency, and that all of the issues surrounding the execution of the 

2008 documents were within the exclusive jurisdiction of the probate 

division. 
Dilley III at ¶ 12. This court rejected appellant’s argument. As such, any 

jurisdictional arguments appellant now raises are barred by res judicata. 

To the extent that appellant argues that Montgomery was, in fact, 

competent, and as a result, the amended trust was valid, this argument was raised 

and rejected on direct appeal. Specifically, appellant argued, 

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 Commons. Accordingly, he contends there was no evidence 

that Montgomery could not competently decide to give her estate to 

him. 

Dilley I at ¶ 24. 

Appellant also argued in his first petition for postconviction relief that 

the amended trust was valid. Specifically, appellant argued, in relevant part, “the 

final settlement in the [probate] interpleader action determined that the amended 

trust was valid[.]” Dilley III at ¶ 10. This argument was rejected by the trial court, 

and this court affirmed the trial court’s judgment on appeal. Accordingly, any 

arguments regarding the validity of the amended trust in appellant’s October 17, 

2018 motion or in the instant appeal are barred by res judicata. 

Finally, because appellant failed to demonstrate that he was entitled 

to relief under R.C. 2953.23, the trial court did not err or abuse its discretion in 

denying appellant’s third petition without holding an evidentiary hearing. 
III. Conclusion 

After thoroughly reviewing the record, we overrule appellant’s 

assignments of error and affirm the trial court’s judgment. Because this was 

appellant’s third petition for postconviction relief, he was required to demonstrate 

that he was unavoidably prevented from discovering the facts necessary for the 

claim for relief, or that a new federal or state right applies retroactively in his case. 

Appellant has failed to demonstrate either of these requirements. 

Many of the arguments that appellant raised in his first and second 

petitions for postconviction relief were rejected by this court in Dilley II and 

Dilley III under the doctrine of res judicata. Similarly, all of the claims that appellant 

raises in his motion at issue either were, or could have been raised on direct appeal. 

Accordingly, these claims are barred by res judicata. 

For all of these reasons, the trial court did not err or abuse its 

discretion in denying appellant’s successive petition without holding a hearing. 

Judgment 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. 
 

FRANK D. CELEBREZZE, JR., JUDGE 

SEAN C. GALLAGHER, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR