Youngstown Daily Legal News

Appeal denied for man who murdered elderly woman in 1981 home invasion

JESSICA SHAMBAUGH
Special to the Legal News
Published: December 19, 2014

A man convicted of the 1981 murder of an elderly woman lost his most recent motion for postconviction relief when the 12th District Court of Appeals ruled that it was untimely.

In his appeal from the Fayette County Court of Common Pleas, Rusty Mootispaw argued that he was entitled to postconviction relief because the state improperly threatened him with the death penalty.

The facts of the case state that Mootispaw murdered 85-year-old Lillian McCarty after breaking into her home in 1981.

He was indicted for aggravated burglary, complicity to aggravated burglary and aggravated murder.

Rather than going to trial, Mootispaw pleaded guilty to a single count of murder and the trial court sentenced him to 15 years to life in prison.

Since the time of his conviction and subsequent sentencing, Mootispaw has filed several motions seeking postconviction relief or to withdraw his plea.

The trial court has denied each of those motions and the 12th District has affirmed.

In his most recent motion, Mootispaw alleged that he had newly discovered evidence in the form of an affidavit from former prosecutor James Kiger, who worked Mootispaw’s case.

Mootispaw claimed he pleaded guilty to avoid the possibility of the death penalty.

He asserted that the new evidence from Kiger showed that the state threatened him with the death penalty to coerce him into taking the plea deal.

However, he pointed out that Ohio did not have a death penalty at the time of his conviction and sentence.

“Ohio’s death penalty statute was temporarily repealed in 1978 and was not active again until Oct. 19, 1981. Therefore, at the time of Mootispaw’s crime/sentence, he was not subject to the death penalty,” Judge Robin Piper wrote for the appellate court.

The trial court denied Mootispaw’s petition without making findings of fact or conclusions of law and he appealed once again to the 12th District.

“Mootispaw argues in his assignments of error that the trial court should have granted his motion for postconviction relief because there is new evidence in his case that his trial counsel was ineffective for allowing the state to threaten him with the death penalty,” Piper stated.

However, despite that argument the appellate judges found no new evidence or any evidence that Mootispaw was unavoidably prevented from discovering the facts he raised in his latest motion.

Rather, they pointed out that at the time of sentencing, the trial court indicated that he could face up to life in prison if he proceeded to trail.

The judges held that the trial court never told Mootispaw he could face the death penalty and therefore he failed to show that he pleaded guilty based upon that belief.

“Moreover, and specific to R.C. 2953.23(A)(1)(b), there is no indication in the record that Mootispaw would not have decided to plead guilty, even without mention of the death penalty,” Piper wrote, noting that Mootispaw pleaded guilty to significantly reduced charges.

Further, the judges held that Kiger only entered the affidavit mentioning the death penalty as part of another case against him by Mootispaw.

They ruled that his mistakenly referencing the death penalty did not constitute newly discovered evidence and therefore rejected Mootispaw’s appeal.

Presiding Judge Robert Hendrickson and Judge Michael Powell concurred.

The case is cited State v. Mootispaw, 2014-Ohio-5316.

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