Barry Zalma

Read the full article at https://www.linkedin.com/pulse/insurance-criminal-appeals-after-pleading-guilty-zalma-esq-cfe and at https://zalma.com/blog plus more than 3950 posts. Posted on November 10, 2021 by Barry Zalma

Sandy Diane Pinney, appealed the March 2, 2021 judgment of the Ashtabula County Court of Common Pleas overruling her motion to dismiss due to pre-indictment delay, and the March 30, 2021, judgment sentencing her to twelve months community control on one count Insurance Fraud. In State Of Ohio v. Sandy Diane Pinney, 2021-Ohio-3483, No. 2021-A-0013, Court of Appeals of Ohio, Eleventh District, Ashtabula (September 30, 2021) the Ohio Court of Appeal dealt with the claim.
FACTS

Ms. Pinney, a fairly incompetent insurance fraud perpetrator, in October 2018, staged a fall on a broken egg while shopping at Wal Mart. Much to her surprise, she was actually injured and suffered a broken ankle. Wal Mart denied her insurance claim and she received no monetary compensation. An investigation was submitted to the prosecutor’s office in 2019.

Meanwhile, in August 2021, Pinney was under indictment for an unrelated offense, to which she pleaded guilty and served a twelve-month prison term. In October 2020, after her release in the unrelated matter, the state charged her with one count Insurance fraud in violation of R.C. 2913.47(B)(1)&(C), a felony of the fifth degree, in relation to the Wal Mart fall.

Pinney filed a motion to dismiss due to a pre-indictment delay arguing prejudice in that she was deprived of the ability to argue for a concurrent sentence, or from seeking a negotiated plea that would have concluded the matter prior to her release from prison. Additionally, she argued that although the events occurred in 2018, the conviction appears on her record in 2021, after the completion of the 2019 prison sentence. The trial court overruled her motion, finding there was no evidence that the State was negligent or intentional in the delay, and that appellant failed to demonstrate prejudice in preparing her defense due to the delay.

In March 2021, Pinney, seeing a conviction on the way, withdrew her not guilty plea and entered a plea of no contest to an amended count one, Insurance Fraud, in violation of R.C. 2913.47(B)(1), a misdemeanor of the first degree. By so doing she avoided jail and the court sentenced her to a twelve-month period of community control.
ANALYSIS

In reviewing a trial court’s decision on a motion to dismiss for preindictment delay, the court reviews only the legal issues, but affords great deference to the trial court’s findings of fact.

When unjustifiable preindictment delay causes actual prejudice to a defendant’s right to a fair trial despite the state’s initiation of prosecution within the statutorily defined limitations period, the Due Process Clause affords the defendant additional protection.

the Supreme Court of Ohio clarified that preindictment delay violates due process only when it is unjustifiable and causes actual prejudice. Once a defendant presents evidence of actual prejudice, the burden shifts to the state to produce evidence of a justifiable reason for delay. If the defendant fails to show actual prejudice, the state need not present evidence justifying the delay in the case.

To demonstrate prejudice, Pinney must point specifically to how she was prejudiced, and the showing must be concrete, not speculative. This court has made it clear that speculation does not show actual prejudice. The possibility of faded memories, inaccessible witnesses, and lost evidence is insufficient to demonstrate actual prejudice. Thus, mere possibilities do not prove actual prejudice.

Pinney argued that the delay in prosecution deprived her of the ability to argue for concurrent sentences or negotiate the plea in the unrelated case. The state argued that her argument must fail because she presented no evidence of this allegation to the trial court.

Pinney’s argument is fundamentally, and fatally, speculative; she argues that she was not permitted the opportunity to argue for concurrent sentences. Thus, Pinney failed to show actual prejudice, and her sole assignment of error was without merit. Her sentence stood.
ZALMA OPINION

Insurance criminals have no honor. After the prosecutors allowed Pinney to plea to a misdemeanor and avoid a return to jail, with unmitigated gall and a total lack of appreciation for the kindness provided to her by the prosecutor and the court, appealed the conviction because it took the prosecutor too long to arrest her while she was in jail on another charge. Her arguments on appeal were specious and she should have had her plea withdrawn and convicted – at trial – on the felony. She got nothing other than waste the time of a trial and court of Appeal.

© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders.

He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business.

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He is available at http://www.zalma.com and [email protected]. Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award. Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

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