Foley pleaded no contest to felony and misdemeanor charges on June 16 as part of a plea bargain with the Ohio Auditor of State’s Office and was subsequently convicted and sentenced. The next day, his attorneys filed a motion to exit that agreement.
Foley’s attorneys say they had a deal with the Ohio Auditor of State’s Office — which is prosecuting the case — that Foley’s convictions wouldn’t force him to resign from public office, but it’s not clear if state law allows that. Auditor’s office attorneys don’t disagree.
Attorney Jon Paul Rion in court on Wednesday said that sections of the Ohio Revised Code conflict with one another, specifically referencing two sections that pertain to a public official’s eligibility for office. Foley was not present for his hearing.
“It was intended that the consequence would be limited to those issued by the court,” Rion said. “There’s a statute or a series of statutes that seem to be in conflict with each other.”
Credit: Bryant Billing
Credit: Bryant Billing
Hein was reappointed by the Ohio Supreme Court to continue overseeing the case. He wrote in his decision that it is “patently clear that there was a foundational condition to the plea: that no collateral consequences would result from the plea and sentencing.”
“While the concern was action by The Ohio Ethics Commission, there was no limitation to the source of collateral attack on the Defendant’s holding elected public office,” Hein wrote.
He wrote in his decision that the court is “mindful that the State does not oppose the motion in any respect.”
“Further, the request was made in a timely fashion considering the date of sentencing and the date of awareness of the collateral consequence,” Hein wrote.
Other challenge
Rion and defense attorney Catherine Jackson also pointed to a recent effort to challenge Foley’s employment with the county.
Daytonian and local activist David Esrati filed a writ of quo warranto in Ohio’s Second District Court of Appeals on June 24 — a week after Foley’s attorneys pushed for Foley’s plea to be withdrawn.
In his writ, Esrati argues that Foley lost his eligibility to hold a public office when he was convicted of a fifth-degree felony count of unauthorized use of a computer and a misdemeanor count of soliciting political contributions from public employees.
Esrati, who was in court on Wednesday morning, disagreed with the use of his court filing as rationale for Foley to have his plea withdrawn, as Esrati’s court action came after Foley’s attorneys filed their paperwork for the plea withdrawal request.
Esrati said he felt this course of action would never be offered to the average Montgomery County resident.
“I think you should strongly oppose this,” he told Ohio auditor of state investigators following Wednesday’s hearing.
Hein references the court of appeals action in his decision, listing it as a “prejudicial effect” against Foley.
But the judge incorrectly states the timeline of events, writing that Foley’s attempt to withdraw his plea came after Esrati filed his court of appeals paperwork.
Hein also ordered Wednesday morning that the document attorneys filed with the court on June 17, which also explains their grounds for wanting to withdraw Foley’s plea, be unsealed and available for public viewing.
The document was not unsealed as of Wednesday afternoon.
Foley was indicted last year alongside former Montgomery County Municipal Court Judge James Piergies. Charges against Foley and Piergies came two years after the clerk of courts office was raided by state auditor’s office investigators.
Piergies changed his plea to guilty in May as part of a plea bargain with state investigators. Hein sentenced him to up to two years of community control and 75 hours of community service. A 90-day jail sentence is suspended based on compliance with the community control sanctions. Piergies is also ordered to pay court costs and a $750 fine. The plea deal required Piergies to resign from office.
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