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Desmond says conflict of interest was ignored

Gains: Not required to have independent prosecutor in ’18 case

YOUNGSTOWN — Martin Desmond, challenger to Mahoning County Prosecutor Paul Gains in the Nov. 3 election, says Gains ignored a conflict of interest when he allowed one of his assistant prosecutors to handle a case.

Desmond recently had a news conference to allege that Gains “violated his duty to the community” when he allowed an assistant prosecutor to handle the 2018 case, in which a felony was reduced to a low-level misdemeanor for the second cousin of Gains’ first assistant prosecutor, Nicholas Modarelli.

“He vacated a felony offense of violence conviction — permitted it to happen,” Desmond said of Gains.

Desmond said he was not questioning the behavior of the judge, defense attorney, defendant or assistant prosecutor who worked on the case — only the action of Gains.

When asked about the case last week, Gains said he did nothing “inappropriate or improper.”

BACKGROUND

Desmond said Dominic Modarelli, then 19, second cousin of Nicholas Modarelli, broke a bottle over the head of a man in a bar in May 2006 and punched the victim, causing serious physical harm. The victim went to the hospital.

Gains asked the court to assign an independent prosecutor because of a possible conflict of interest. A Youngstown assistant law director presented the case to a Mahoning County grand jury, which indicted Modarelli on felonious assault, a high-level felony.

Dominic Modarelli pleaded guilty to the lesser offense of aggravated assault in 2007 and was convicted before Judge R. Scott Krichbaum of Mahoning County Common Pleas Court. He was placed on probation, which lasted 2 1/2 years.

In 2015, Modarelli filed a motion asking to have his record expunged. A second independent prosecutor — another assistant Youngstown law director — was appointed. The expungement was denied because the case was not eligible for expungement, according to court records.

In 2018, Modarelli filed a motion asking that he be allowed to withdraw his guilty plea from 2007.

This time, Gains had one of his assistant prosecutors, attorney Michael Rich, handle the case. Rich told the judge the prosecutor’s office opposed allowing Modarelli to rescind his guilty plea. He also said the victim’s father — speaking for the victim — objected to allowing Modarelli to rescind his plea, according to a transcript of the hearing obtained by The Vindicator.

Krichbaum took the matter under advisement. Three weeks later, at another hearing, Krichbaum asked Rich whether he believed he had any conflict of interest in being assigned the case. Rich said he did not because he knew nothing about it at the time.

Modarelli’s attorney, Mark Hanni, had indicated that Modarelli had been having trouble finding a good job because of his felony conviction.

Hanni also argued that Modarelli deserved to have his plea rescinded because Modarelli had not been notified by his initial attorney that if he pleaded guilty to aggravated assault, his conviction could not be expunged.

JUDGE RULES

During the hearing, Krichbaum noted that the victim had been seriously injured. Rich said the victim’s father, an Austintown policeman, now indicated that the victim “wants it to be done with.”

Krichbaum stated that he “believes that this young man (Modarelli) has earned the chance to get up off the ground, so I’m going to grant the motion to withdraw the plea.”

Rich then explained that he and Hanni had worked out a plea agreement in the event that Krichbaum allowed Modarelli to withdraw his plea. Modarelli would plead guilty to menacing, a low-level misdemeanor, Rich said.

The judge then agreed to the plea agreement on the misdemeanor conviction and put Modarelli on probation for one year. He terminated the probation, however, because Modarelli already had been on probation three years.

GAINS RESPONDS

“I never expected Judge Krichbaum to grant the vacation of his plea, but I didn’t think there was necessarily that much of a conflict,” Gains said.

Gains said he was not required to have a special prosecutor handle the case, but he did so in the beginning.

“When we got the case, we brought in a special prosecutor, not because we had to bring in a special prosecutor but because of the appearance of impropriety because it was Nick Modarelli’s second cousin,” Gains said.

When asked whether he should have tried to avoid the appearance of impropriety, Gains said, “Yes, in hindsight, but it’s not an actual ethical violation because we did everything the special prosecutor would have done. We opposed the motion. But it is within the judge’s discretion to grant it. We spoke to the victim or at least the victim’s father, and the victim indicated he didn’t care one way or another. He put it behind him.”

Desmond said the reduction to a misdemeanor allowed Modarelli to have his record “sealed and expunged from public view.” The case has not been expunged, however, according to online court records.

“I don’t know if this has happened in other cases,” Desmond said. “I was fortunate enough to find this case before” it was expunged.

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