State v. Rudolph , 2023 Ohio 1040 ( 2023 )

[Cite as State v. Rudolph, 2023-Ohio-1040.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111732
v. :
JEREMY RUDOLPH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 30, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-661523-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl M. Felice, Assistant Prosecuting
Attorney, for appellee.
Ashley Jones Law Firm, Ashley L. Jones and Leslie S.
Johns, for appellant.
EILEEN A. GALLAGHER, J.:
Defendant-appellant Jeremy Rudolph appeals his sentence after he
pled guilty to two counts of grand theft. He contends that the trial court erred in
sentencing him to a prison term rather than community-control sanctions. For the
reasons that follow, we affirm the trial court.
Procedural History and Factual Background
On July 21, 2021, a Cuyahoga County Grand Jury indicted Rudolph
on four counts of grand theft in violation of R.C. 2913.02(A)(3), a fourth-degree
felony. The charges involved five victims — Travis Ferris, Peter and Adrian Pruitt,
Dean Balbach and Abilene Alvarado. Rudolph initially pled not guilty to all charges.
On May 9, 2022, the parties reached a plea agreement. Rudolph
agreed to plead guilty to two amended counts1 of grand theft in violation of R.C.
2913.02(A)(3), i.e., theft by deception, and to pay a total of $211,486.67 in
restitution. In exchange for his guilty pleas, the remaining counts would be nolled.
At the change-of-plea hearing, Investigator Patrick from the Ohio
Department of Commerce Division of Securities (the “securities division”) provided
a brief overview of the facts that led to the charges against Rudolph. He explained
that the securities division received information that Rudolph was “selling
investments in a trading platform to individuals,” that the victims gave money to
Rudolph to invest in the trading platform, that Rudolph had promised the victims
that they “would get a return back on the money” and that, instead of investing the
funds, Rudolph placed the funds into his personal accounts and used them for his
personal use.
1
Count 1 was amended to include Balbach as an additional victim and Count 2 was
amended to include Alvarado as an additional victim.
During the plea colloquy, the trial court advised Rudolph regarding
the constitutional rights he would be waiving by pleading guilty and further advised
him that each of the counts to which he would be pleading guilty was “punishable by
a separate six to 18-month prison sentence and a fine of up to $5,000.” No objection
was made to this advisement at the change-of-plea hearing. Rudolph indicated that
he understood. The trial court also advised Rudolph that he would be ordered to
pay restitution in accordance with the plea agreement, that if he were placed on
probation, he could be ordered to pay a supervisory fee associated with his probation
and that, if he were sentenced to prison, the parole board would have the discretion
to place him on postrelease control for up to two years after he completed his prison
terms. Once again, no objection was made to the reference to a possible prison
sentence. Rudolph indicated that he understood.
Rudolph entered his guilty pleas as agreed. The trial court found that
Rudolph entered his guilty pleas knowingly, intelligently and voluntarily and
accepted his pleas. The remaining counts were nolled. The assistant prosecuting
attorney and Rudolph’s counsel both indicated that they were satisfied that the trial
court had complied with Crim.R. 11. The trial court then ordered a presentence-
investigation report (“PSI”).
The PSI2 included detailed information, provided by the securities
division, regarding its investigation of the scheme that led to the charges against
2 At the sentence hearing, Rudolph’s counsel confirmed that she had read the PSI
and found it to be “complete and accurate.”
Rudolph. As reported in the PSI, the investigation revealed that Rudolph, through
his sole member limited liability company, Haven Financial Enterprise, LLC
(“Haven Financial”), sold investment contracts in Haven Financial’s “trading
leverage platform” that stated that investors would receive “10 times their
investment in 37-40 banking days.” Ferris, the Pruitts, Balbach and Alvarado
provided funds to Haven Financial and/or Rudolph for investment. Instead of
investing the funds, Rudolph deposited the “investment funds” received from Ferris,
the Pruitts, Balbach and Alvarado into bank accounts under his control and used the
majority of the “invested funds” to pay personal expenses. The securities issued by
Rudolph through Haven Financial were not registered with the securities division
for sale in, or from, Ohio. Rudolph had never held a securities salesperson license
or an investment advisor representative license in Ohio.
As reported in the PSI, the investigation also revealed that Rudolph
told Ferris that he would help him obtain financing by applying for credit cards and
loans in Ferris’ name. He sent Ferris various documents explaining the trading
platform and guaranteeing him an $80,000 profit on a $100,000 investment.
Ferris took advances on his credit cards and made transfers to Haven Financial
totaling approximately $47,400 for investment in the trading platform. Ferris
stated that he never received any return on his investment and that although
Rudolph was supposed to make payments on one of the credit cards Ferris had
obtained to finance the “investments,” Rudolph stopped making payments after
making only two credit card payments.
Adrian Pruitt told the securities division that Rudolph had helped the
Pruitts obtain credit cards for their business then presented an investment
opportunity, i.e., the trading platform, “promising a higher rate of return.” She
indicated that the Pruitts invested funds with Rudolph and, in exchange, Rudolph
provided a “promissory note,” providing for “75% interest” with $2,500 monthly
payments until paid. She stated that the Pruitts received several payments from
Rudolph but that Rudolph then stopped paying them and stopped responding to
them.
Balbach told the securities division that Rudolph informed him of an
investment opportunity — which he understood to be an overseas investment — that
would generate “substantial returns in a short period.” Balbach stated that in
exchange for his investment, Rudolph gave Balbach a promissory note that stated
that his “investment value” was $100,000 and “guarantee[d]” a return of $250,000.
He stated that he never received any return on his investment.
Alvarado told the securities division that, on the advice of Rudolph,
she obtained $50,000 in personal loans for investment with Rudolph through
Haven Financial. She stated that Rudolph assured her that the investment would
have a 30-45 day turnaround. Alvarado never received any payments from
Rudolph.
None of the victims received the “guaranteed” returns on their
investments with Rudolph. Only the Pruitts were repaid the funds they had invested
with Rudolph.
On June 13, 2022, the trial court conducted a sentencing hearing.
The state, Alvarado, Balbach, defense counsel and Rudolph spoke at the sentencing
hearing.
The state began by explaining the “scam” that led to the charges in the
case as follows:
Your Honor, a complaint came into the Department of
Commerce’s website and was forwarded to the Division of Securities to
investigate.
This complaint was from Ms. Alvarado, and it related to — it was
related to an investment scheme in which she was scammed by
the Defendant, Mr. Rudolph.
And Investigator Patrick took a look at the complaint, and then
began a long investigation. * * * And over about a year-and-a-half or
two years they were able to uncover a scheme related to Mr. Rudolph.
The scheme was being run through a company that he started,
which is called Hayden [sic] Financial.
And Hayden [sic] Financial, your Honor, was just a farce. It was
just a company which preyed on victims that would have no idea that
they were going to be scammed.
What happened was, although it started out as one complaint,
Investigator Patrick was able to uncover three additional victims of Mr.
Rudolph’s.
And what he was telling them, Mr. Rudolph, was that he invests
in trading platforms, and that he was going to guarantee money on
their return. * * * [H]e says, if you were to invest $100,000 within 37
to 45 days, you’re going to start seeing a return.
And then, ultimately, there’s going to be a guarantee of $80,000
in — in investment revenue, and up to $100,000 from your $100,000
investment.
What Investigator Patrick was able to do is look at all of the
checks that came from all four of these victims into Mr. Rudolph’s bank
account.
And what he found was that there was no such program. There
was no such investment.
Mr. Rudolph was completely living off of the money provided to
him from all four of his victims.
He was convincing the victims to take out loans, to borrow
against, you know, whatever they had in order to, you know, put this
money into his trading platform. * * * So that was part of the whole
pitch, as well. If you don’t have the money, you can obtain it. And you
can pay these loans back quickly that way. * * * He — it was just a big
scam, is what he was running.
The state indicated that Rudolph was not a registered investment
advisor. The state further explained that, at Rudolph’s urging, two of the victims,
Alvarado and Balbach, had taken out loans to fund their investments with Rudolph
and a third victim, Ferris, had used credit cards and a line of credit to fund his
investments with Rudolph.
At the hearing, Alvarado described how Rudolph convinced her to
take out loans totaling approximately $50,000 to secure funds to invest in
Rudolph’s scheme. She stated that she never received any returns on her
investments as promised by Rudolph and that, as a result of Rudolph’s
“premeditated” theft, she owed over $50,000 in loans she could not pay, had been
sued for nonpayment of those loans and, due to the damage to her credit, was living
with her parents and had been unable to secure financing to obtain a handicapped-
accessible vehicle for her disabled son for five years.
At the hearing, Balbach explained that he gave Rudolph over
$118,000 for investment ($75,000 of which was obtained through loans), that he
“lost the trust that [he] had” and that he suffered significant stress and health
problems in addition to financial losses as a result of Rudolph’s scam.
Alvarado and Balbach also submitted written victim-impact
statements to the trial court prior to the sentencing hearing that further described
Rudolph’s scam, the representations Rudolph made that led them to invest their
funds with Rudolph and the financial, physical and emotional impact of Rudolph’s
scam on each of them.
Defense counsel argued for the imposition of community-control
sanctions, asserting that Rudolph had “genuine remorse” for his actions, had
previously “lived a really law-abiding life,” had “accepted responsibility” for his
actions and “realize[d] the need * * * to pay restitution.” She stated that although
Rudolph was then unemployed, he had been looking for a job so he could start
making payments towards the restitution he owed his victims. Rudolph apologized
to the victims, stating that he “truly sympathize[d] with what they’re dealing with
and going through” and that he “would just like to make this right with the victims
so they can move on with their life peacefully.” Rudolph claimed that he had “several
job offers on hold” pending the outcome of the case but, upon further questioning
by the trial court, admitted that he had no written job offers.
After considering the PSI,3 the victim-impact statements, the
statements made at the sentencing hearing and “the seriousness and recidivism
factors and the purposes and principles of [the] sentencing statutes,” the trial court
sentenced Rudolph to 18 months in prison on each count, to be served concurrently.
The trial court also ordered Rudolph to pay $45,989 in restitution to Alvarado,
$118,097.67 in restitution to Balbach and $47,408 in restitution to Ferris.4
In sentencing Rudolph, the trial court stated:
Mr. Rudolph, you are nothing short of a con. You created a
platform, not a trading platform, but a platform of deceit here, deceit
and pressure.
Not only did you steal money from Ms. Alvarado and Mr.
Balbac[h] and Mr. F[e]rris, but you stole money that they didn’t even
have.
They took out loans to invest with you, and now Ms. Alvarado’s
left with a severely disabled son, and she can’t even afford a vehicle to
transport that son. * * * Again, the amount of economic harm caused to
people who can’t afford it is life changing. * * * So the injury caused, or
suffered was both serious on an economic and physiological point of
view, and maybe even so on a physical — from a physical standpoint,
the amount of stress that people experience, eventually manifests itself
in poor health.
Rudolph raised no objection to his prison sentences at the sentencing
hearing. On June 21, 2022, the trial court filed its sentencing journal entry in which
3 At the sentencing hearing, Rudolph’s counsel confirmed that she had read the
PSI and that it was “complete and accurate.”
4 The Pruitts were not included in the restitution order because Rudolph paid back
the funds invested by the Pruitts, making them whole.
it indicated that it had “considered all required factors of the law” when sentencing
Rudolph and had found that “prison is consistent with the purpose of R.C. 2929.11.”
On July 5, 2022, Rudolph filed a motion for reconsideration, arguing
that (1) House Bill 86 and R.C. 2929.13(B)(1)(a) required that Rudolph be sentenced
to community-control sanctions rather than a prison term and (2) “in considering
the purposes and principles of felony sentencing and R.C. 2929.13(B)(1)(a), a
sentence of community control [was] warranted.” Rudolph requested that the trial
court “modify the sentence imposed in this case to impose a period of community
control sanctions pursuant to R.C. 2929.13(B)(1)(a).” A week later, Rudolph filed a
notice of appeal from the trial court’s June 21, 2022 sentencing journal entry.
On July 21, 2022, the trial court held a hearing on Rudolph’s motion
for reconsideration (the “reconsideration hearing”). At the reconsideration hearing,
Rudolph argued that the trial court lacked authority to sentence Rudolph to a prison
sentence under R.C. 2929.13(B)(1)(a) and that it was, therefore, “appropriate” for
the trial court to resentence Rudolph to community-control sanctions. The state
responded that the trial court had properly sentenced Rudolph to a prison term
under R.C. 2929.13(B)(1)(b)(vii) because Rudolph held a “position of trust” and
“created a fiduciary relationship” with his victims, i.e., the victims had trusted
Rudolph to invest the money he was taking from them “into an actual investment
fund.” The state further argued that Rudolph’s motion for reconsideration was a
legal nullity, that the trial court lacked jurisdiction to consider its final judgment and
that Rudolph’s filing of a notice of appeal deprived the trial court of jurisdiction to
rule on Rudolph’s motion for reconsideration. The trial court denied Rudolph’s
motion for reconsideration. Rudolph did not file a notice of appeal from that ruling
or seek to amend its prior notice of appeal to include the trial court’s denial of his
motion for reconsideration.
On appeal, Rudolph raises the following two assignments of error for
review:
1. The trial court erred to the prejudice of appellant by imposing a
prison term in violation of Ohio Revised Code
§ 2929.13(B)(1)(a).
2. The trial court erred in failing to consider mandatory sentencing
factors under [R.C.] 2929.13(B)(1)(a) before sentencing and
engaging judicial fact-finding to enhance a sentence in violation
of Ohio Revised Code § 2953.08(G)(2), after sentencing.
Rudolph’s assignments of error are interrelated. Accordingly, we
address them together.
Law and Analysis
Imposition of Prison Sentence
In his first assignment of error, Rudolph argues that the trial court
erred in sentencing him to prison instead of community-control sanctions under
R.C. 2929.13(B)(1)(a). In his second assignment of error, Rudolph argues that his
prison sentence is contrary to law and must be vacated because the trial court failed
to “apply the statutory considerations” in R.C. 2929.13(B)(1) “before or (even
during) sentencing” and failed to “acknowledge” at sentencing that “there was a
statutory presumption of community control under [R.C.] 2929.13(B)(1)(a).” The
state responds that the trial court did not err in sentencing Rudolph to a prison term
rather than community-control sanctions because Rudolph held a “position of trust”
that “facilitated” the offenses at issue and the trial court, therefore, had discretion to
sentence Rudolph to a prison term under R.C. 2929.13(B)(1)(b)(vii).
We generally review felony sentences under the standard of review
set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 21. Pursuant to R.C. 2953.08(G)(2), an appellate court may
increase, reduce or otherwise modify a sentence, or it may vacate a sentence and
remand for resentencing, if it “clearly and convincingly finds” that (1) the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4) or 2929.20(I), “whichever, if any, is relevant,” or (2) the
sentence is “otherwise contrary to law.” “‘“Clear and convincing evidence is that
measure or degree of proof * * * which will produce in the mind of the trier of facts
a firm belief or conviction as to the facts sought to be established.’”” State v.
Gwynne, Slip Opinion No. 2022-Ohio-4607, ¶ 19, quoting State v. Marcum at ¶ 22,
quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
In this case, however, Rudolph did not object to the trial court’s
advisements regarding a possible prison sentence at the change-of-plea hearing and
did not object to the trial court’s imposition of a prison sentence rather than placing
him under community-control sanctions at the sentencing hearing.5 Because
Rudolph did not object to his prison sentence at the sentencing hearing, he has
forfeited all but plain error. See, e.g., State v. Buckway, 8th Dist. Cuyahoga No.
100591, 2014-Ohio-3715, ¶ 3 (where defendant failed to object to the trial court
imposing a term of imprisonment rather than community-control sanctions at
sentencing under R.C. 2929.13(B)(1), he forfeited all but plain error); State v. Ali,
10th Dist. Franklin Nos. 18AP-935, 18AP-936 and 18AP-938, 2019-Ohio-3864, ¶ 23
(where defendant did not object at the sentencing hearing to the trial court’s
imposition of a prison term rather than community-control sanctions for his crime
of receiving stolen property, he forfeited all but plain error); State v. Henslee, 5th
Dist. Muskingum No. CT2017-0009, 2017-Ohio-5786, ¶ 12 (where defendant failed
to object, at his sentencing hearing, that the trial court had failed to make findings
under R.C. 2929.13(B)(1)(b) before imposing a prison sentence for fourth- and fifth-
degree felonies, he forfeited all but plain error); State v. Ganguly, 2015-Ohio-845,
29 N.E.3d 375, ¶ 38-40 (10th Dist.) (where defendant did not object to the
imposition of a prison term at the sentencing hearing, appellate review was limited
to plain error).
Appellate courts have discretion to correct plain error. State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. Plain error is an
5 As stated above, Rudolph did not raise any objection to his prison sentence until
his motion for reconsideration, filed more than three weeks after the sentencing hearing
and two weeks after the trial court entered its sentencing journal entry. Because
Rudolph’s motion for reconsideration is a nullity, as explained below, that motion did not
preserve the alleged sentencing error for appellate review.
obvious error or defect in the trial court proceedings that affects a substantial right.
Id.; see also Crim.R. 52(B) (“Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the court.”). Plain
error requires a showing that there was an error, i.e., a ‘“deviation from a legal rule,’”
that the error was plain or obvious and that, but for the error, the outcome of the
proceeding would have been otherwise, i.e., “a reasonable probability that the error
resulted in prejudice.” Rogers at ¶ 22-23, quoting State v. Barnes, 94 Ohio St.3d 21,
27, 759 N.E.2d 1240 (2002); see also State v. Buttery, 162 Ohio St.3d 10, 2020-
Ohio-2998, 164 N.E.3d 294, ¶ 7, citing State v. Quarterman, 140 Ohio St.3d 464,
2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. Notice of plain error “is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. The party asserting plain error “bears the burden
of proof to demonstrate plain error on the record.” Rogers at ¶ 22, citing
Quarterman at ¶ 16.
Rudolph has not shown that the trial court committed error — much
less plain error — here.
R.C. 2929.13(B)(1)(a) creates a presumption in favor of community-
control sanctions for nonviolent fourth- and fifth-degree felonies meeting certain
criteria. State v. Gates, 8th Dist. Cuyahoga No. 108067, 2019-Ohio-4783, ¶ 7; State
v. Jones, 8th Dist. Cuyahoga No. 107429, 2019-Ohio-1772, ¶ 13. It states:
Except as provided in division (B)(1)(b) of this section, if an offender is
convicted of or pleads guilty to a felony of the fourth or fifth degree that
is not an offense of violence or that is a qualifying assault offense, the
court shall sentence the offender to a community control sanction or
combination of community control sanctions if all of the following
apply:
(i) The offender previously has not been convicted of or pleaded
guilty to a felony offense.
(ii) The most serious charge against the offender at the time of
sentencing is a felony of the fourth or fifth degree.
(iii) The offender previously has not been convicted of or pleaded
guilty to a misdemeanor offense of violence that the offender
committed within two years prior to the offense for which
sentence is being imposed.
Rudolph argues that because he met the criteria in R.C.
2929.13(B)(1)(a), the presumption in favor of community-control sanctions applied,
and the trial court was required to sentence him to community-control sanctions
rather than to prison. We disagree.
The parties do not dispute that the criteria set forth in R.C.
2929.13(B)(1)(a) were met in this case. However, R.C. 2929.13(B)(1)(a), by its
terms, is subject to the exceptions listed in R.C. 2929.13(B)(1)(b). Under R.C.
2929.13(B)(1)(b), a trial court retains discretion to impose a prison term on a
defendant who otherwise would be subject to mandatory community-control
sanctions when certain conditions are met. R.C. 2929.13(B)(1)(b) provides, in
relevant part:
The court has discretion to impose a prison term upon an offender who
is convicted of or pleads guilty to a felony of the fourth or fifth degree
that is not an offense of violence or that is a qualifying assault offense
if any of the following apply:
* * * (vii) The offender held a public office or position of trust, and the
offense related to that office or position; the offender’s position obliged
the offender to prevent the offense or to bring those committing it to
justice; or the offender’s professional reputation or position facilitated
the offense or was likely to influence the future conduct of others.
‘“R.C. 2929.13(B)(1)(b) does not require a trial court to enter a specific
finding to the applicability of the section.”’ Jones, 2019-Ohio-1772, at ¶ 16, quoting
State v. Dudley, 5th Dist. Ashland No. 14-COA-015, 2014-Ohio-5419, ¶ 13; see also
State v. Faiola, 7th Dist. Mahoning No. 21 MA 0094, 2022-Ohio-1126, ¶ 13 (‘“[A]
trial court is not required to make specific findings when imposing a prison sentence
pursuant to R.C. 2929.13(B)(1)(b).’”), quoting State v. Benson, 7th Dist. Mahoning
No. 18 MA 0042, 2019-Ohio-4635, ¶ 13, citing State v. Floyd, 7th Dist. Belmont No.
15 BE 61, 2017-Ohio-4278, ¶ 4-7 (affirming a prison sentence because the record
established the defendant was on probation at the time of the offense, despite the
trial court’s failure to make specific findings at the sentencing hearing); State v.
Lewis, 3d Dist. Marion No. 9-20-49, 2021-Ohio-1692, ¶ 16 (“[A] trial court is not
required to make specific factual findings when imposing a prison sentence
pursuant to R.C. 2929.13(B)(1)(b).”), citing State v. Paxon, 11th Dist. Trumbull No.
2019-T-0011, 2019-Ohio-3551, ¶ 18 (“[T]he statute does not require a court to
explicitly make a finding before it has discretion to impose prison. Instead, a plain
reading of the applicable version of R.C. 2929.13(B)(1)(b) confirms that if any of the
factors apply, the court has discretion to impose a prison term. No explicit findings
are required.”); State v. Conley, 1st Dist. Hamilton No. C-200144, 2021-Ohio-837,
¶ 22 (a trial court is not required to make findings before imposing a prison term
under R.C. 2929.13(B)(1)(b)), citing State v. Hamilton, 1st Dist. Hamilton No. C-
140290, 2015-Ohio-334, ¶ 8; Henslee, 2017-Ohio-5786, at ¶ 15 (“R.C.
2929.13(B)(1)(a) and (b) do not require the trial court to make specific findings.”).
In State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d
1282, the Supreme Court of Ohio analyzed the “position of trust” factor in R.C.
2929.13(B)(1)(b)(vii). The court rejected an “unrestrained application of the phrase
‘position of trust’ to ‘every breach of ethical, moral, or filial duty by a private
individual,’” finding such an approach to be “[in]consistent with the sentencing
principles set forth by the General Assembly,” which, “as a whole[,] illustrate[d] that
the General Assembly intended a narrow application of the phrase ‘position of
trust.’” (Citations omitted.) Id. at ¶ 21-22. The court held that “a private individual
holds a ‘position of trust’ if he or she occupies a special relationship of trust and
confidence equivalent to a fiduciary relationship.” Id. at ¶ 41. The court further
explained:
‘“A ‘fiduciary relationship’ is one in which special confidence and
trust is reposed in the integrity and fidelity of another and there is a
resulting position of superiority or influence, acquired by virtue of this
special trust.’” Stone v. Davis, 66 Ohio St.2d [74,] 78, 419 N.E.2d 1094[(1981)], quoting In re Termination of Pratt, 40 Ohio St.2d [107,] 115,
321 N.E.2d 603 [(1974)]. “A ‘fiduciary’ has been defined as “‘a person
having a duty, created by his undertaking, to act primarily for the
benefit of another in matters connected with his undertaking.’””
(Emphasis sic.) Strock v. Pressnell, 38 Ohio St.3d 207, 216, 527 N.E.2d
1235 (1988), quoting Haluka v. Baker, 66 Ohio App. 308, 312, 34
N.E.2d 68 (1941), quoting 1 Restatement of the Law, Agency, Section
13, Comment a (1933). “A fiduciary relationship need not be created by
contract; it may arise out of an informal relationship where both parties
understand that a special trust or confidence has been reposed.” Stone,
66 Ohio St.2d at 78.
Id. at ¶ 35.6 In Massien, the court considered whether a nurse who stole medicine
occupied a “position of trust” relative to her employer, the hospital. Id. at ¶ 3, 36-
40. The court noted that the record did not establish that Massien breached a duty
of trust to any patient or that any patient was harmed as a result of her actions. Id.
at ¶ 36. The court concluded that the relationship between the nurse and the
hospital was merely an employee-employer relationship and that she did not
“occup[y] a special relationship of trust and confidence equivalent to a fiduciary
relationship” with the hospital. Id. at ¶ 36-40, paragraphs two, three and four of the
syllabus.
In this case, by contrast, the record supports the conclusion that
Rudolph had a relationship akin to that of a fiduciary with the victims in this case.
The record shows that Rudolph held himself out to the victims as a legitimate
financial investor, broker or advisor and took the victims’ money with the
understanding that Rudolph would be investing it for them and would get them a
significant return on their investment. The record further shows that, on the advice
of, and at the urging of, Rudolph several of the victims took out loans to fund their
6 Neither party has cited any case law addressing the application of the “position
of trust” element in R.C. 2929.13(B)(1)(b)(vii) to facts similar to those here. The only case
Rudolph cites other than Massien on the issue, State v. Garrett, 12th Dist. Butler No.
CA2018-03-048, 2019-Ohio-750, was overruled following en banc consideration. See
State v. Garrett, 2019-Ohio-2672, 140 N.E.3d 16 (12th Dist.).
“investments” with him. Clearly, these victims believed that in giving funds to
Rudolph, he would be acting “primarily for [their] benefit” and trusted that he would
make investments that were in their best interest and would earn them substantial
returns as he had promised. See id. at ¶ 35.
As set forth in the PSI, the statements at the sentencing hearing and
in the victim-impact statements, the relationship between Rudolph and his victims
was comparable to the relationship between a legitimate financial investor, broker
or advisor and his or her clients. Although Rudolph knew his transactions with the
victims were a scam, the victims did not. The victims believed they were giving their
money — tens of thousands of dollars — to a legitimate financial investor, broker or
advisor who would invest their money on their behalf and increase their wealth. In
so doing, the victims reposed a “special confidence and trust” in the “integrity and
fidelity” of Rudolph, by virtue of which Rudolph acquired a “position of superiority
or influence” over his victims. Id. at ¶ 35; cf. Ohio Div. of Secs. v. Treece, 6th Dist.
Lucas No. L-21-1191, 2022-Ohio-3267, ¶ 47 (“The relationship between a financial
advisor and his or her clients is clearly fiduciary in nature.”); Hanick v. Ferrara,
2020-Ohio-5019, 161 N.E.3d 1, ¶ 85 (7th Dist.) (“‘A broker or financial advisor has a
fiduciary relationship with his clients.’”), quoting Lawarre v. Fifth Third Secs. Inc.,
1st Dist. Hamilton No. C-110302, 2012-Ohio-4016, ¶ 13; Mathias v. Rosser, 10th
Dist. Franklin No. 01AP-768, 2002-Ohio-2772, ¶ 18 (noting there is “general
agreement that a broker or financial advisor is in a fiduciary relationship with his
clients”). The record shows the victims would not have given their money to
Rudolph had they not believed he was a legitimate financial investor, broker or
advisor, who would be investing their funds on their behalf as agreed. The crimes
for which Rudolph was convicted related directly to Rudolph’s position as a
purported financial investor, broker or advisor and were facilitated by Rudolph’s
position as a purported financial investor, broker or advisor. As detailed above, the
record reflects that the trial court specifically considered Rudolph’s conduct and the
manner in which he utilized his position and the trust his victims had reposed in
Rudolph when sentencing him, noting that he had created “not a trading platform,
but a platform of deceit here, deceit and pressure.”
Although the trial court did not make any specific findings under R.C.
2929.13(B)(1)(b) prior to sentencing Rudolph to prison in this case, it was not
required to do so. The record was sufficient to conclude that Rudolph held a
“position of trust” that “facilitated” the offenses at issue, i.e., the victims reposed
“confidence and trust” “in the integrity and fidelity of [Rudolph],” that he thereby
acquired “a resulting position of superiority or influence” over the victims and that
he used that trust and influence to defraud the victims. Massien, 125 Ohio St.3d
204, 2010-Ohio-1864, 926 N.E.2d 1282, at ¶ 35, 41; cf. State v. Betts, 10th Dist.
Franklin No. 19AP-226, 2020-Ohio-4891, ¶ 15-16, 23 (record supported
determination that defendant nurse, an independent provider who was permitted to
bill the Ohio Department of Medicaid directly, abused her “position of trust” when
she fraudulently billed for services she never provided and could, therefore, be
sentenced to prison time pursuant to R.C. 2929.13(B)(1)(b)(vii)); Garrett, 2019-
Ohio-2672, 140 N.E.3d 16, at ¶ 25-31 (record supported trial court’s finding that
defendant held a position of trust that facilitated telecommunications fraud and
theft offenses pursuant to R.C. 2929.13(B)(1)(b)(vii) where defendant used her
position as caretaker to defraud elderly victim into giving her $4,800, believing
money would be used to help victim’s grandson); State v. Courtney, 2d Dist. Clark
No. 2013-CA-73, 2014-Ohio-1659, ¶ 23-24 (trial court did not err in sentencing
defendant to a prison term rather than community-control sanctions; record
supported determination that defendant held a “position of trust” under former R.C.
2929.13(B)(1)(b)(viii) that facilitated her theft from employer where defendant was
an office manager of a used car dealer, had worked for the company for 20 years,
was in charge of customer accounts, used software to track the company’s accounts
and expenses and handled large sums of money on behalf of her employer).
Because the application of R.C. 2929.13(B)(1)(b)(vii) was supported
by the record, the trial court had discretion to impose a term of imprisonment rather
than community-control sanctions. See, e.g., Jones, 2019-Ohio-1772, at ¶ 17.
Accordingly, Rudolph has not shown that the trial court erred — much less
committed plain error — in sentencing him to a prison sentence rather than
community-control sanctions.
Motion for Reconsideration
In his second assignment of error, Rudolph contends that the
transcript from the reconsideration hearing shows that “the provisions of [R.C.]
2929.13(B)(1)(a) were not a factor” in the trial court’s sentencing of Rudolph and
that the trial court improperly “engaged in after-sentencing judicial fact-finding to
conclude that [R]udolph breached a fiduciary duty” when denying Rudolph’s
motion for reconsideration. Rudolph’s arguments are meritless.
It is well established that a trial court cannot reconsider a valid final
judgment in a criminal case. See, e.g., State v. Raber, 134 Ohio St.3d 350, 2012-
Ohio-5636, 982 N.E.2d 684, ¶ 20 (‘“[T]rial courts lack authority to reconsider their
own valid final judgments in criminal cases.’”), quoting State ex rel. White v. Junkin,
80 Ohio St.3d 335, 338, 686 N.E.2d 267 (1997). Because the trial court lacks
jurisdiction to reconsider its own valid final judgments, a motion to reconsider a
sentence that is filed after the entry of a valid final judgment is a legal nullity, and
any purported judgment or order from such a motion for reconsideration is also a
legal nullity. See, e.g., State v. Moon, 8th Dist. Cuyahoga No. 93673, 2010-Ohio-
4483, ¶ 19; State v. Dix, 8th Dist. Cuyahoga No. 101007, 2014-Ohio-3330, ¶ 3, citing
Pitts v. Ohio Dept. of Transp., 67 Ohio St.2d 378, 379, 381, 423 N.E.2d 1105 (1981).
There is no dispute in this case that the trial court’s June 21, 2022
sentencing journal entry was a valid final judgment. As such, Rudolph’s motion for
reconsideration was a legal nullity. Likewise, the trial court’s reconsideration
hearing and order denying Rudolph’s motion for reconsideration were nullities.7
7 As noted above, Rudolph did not appeal the trial court’s denial of his motion for
reconsideration or seek to amend his prior notice of appeal to include the trial court’s
July 21, 2022 order denying his motion for reconsideration. Nevertheless, because his
motion for reconsideration was a nullity, the trial court’s order denying Rudolph’s motion
for reconsideration was not subject to appeal. See, e.g., Dix at ¶ 2-4; State v. Rivkind, 11th
Dist. Portage No. 2023-P-0004, 2023-Ohio-514, ¶ 2-4.
Furthermore, the timely filing of a notice of appeal deprives a trial
court of jurisdiction over matters that are inconsistent with the appellate court’s
jurisdiction to affirm, modify or reverse the judgment being appealed. See, e.g.,
State ex rel. Electronic Classroom of Tomorrow v. Cuyahoga Cty. Court of
Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d 149, ¶ 13; see also
State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 8
(“‘An appeal is perfected upon the filing of a written notice of appeal. * * * Once a
case has been appealed, the trial court loses jurisdiction except to take action in aid
of the appeal.’”), quoting In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d
1207, ¶ 9; State v. McDonald, 8th Dist. Cuyahoga No. 111724, 2023-Ohio-464, ¶ 15-
16 (“[T]he timely filing of a notice of appeal precludes a trial court from issuing
further orders affecting matters at issue in the appeal. Where a trial court enters an
order without jurisdiction, its order is void and a nullity.”), citing State v.
Williamson, 8th Dist. Cuyahoga Nos. 100563 and 101115, 2014-Ohio-3909, ¶ 18.
Rudolph filed his notice of appeal, timely appealing his judgment of conviction,
before the reconsideration hearing and before the trial court ruled on his motion for
reconsideration.
Accordingly, we do not consider Rudolph’s motion for
reconsideration, the reconsideration hearing or the trial court’s order denying his
motion for reconsideration here.
Rudolph’s first and second assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the 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.
The defendant’s conviction having been affirmed, any bail pending appeal is
terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
EMANUELLA D. GROVES, J., CONCUR