COLUMBUS — Two-and-a-half years into a six-and-a-half-year prison sentence for burglary and theft, former Benton Township Trustee Gerald Dean Stevens is still trying to keep an appeal of his conviction alive — despite having lost at every stage of the appeal process thus far.
Stevens’ most recent effort came in December, when he asked Ohio’s Fourth District Court of Appeals to reopen his appeal based on his claim that his previous attorney — whom he has replaced — provided him with ineffective legal assistance. Stevens’ current appeal attorney is his third.
A special prosecutor from the Ohio Attorney General’s Office has replied, in a legal memorandum filed with the appellate court last Friday, that Stevens’ request should be denied, because his latest attorney has failed to show convincingly that his previous lawyer mishandled the appeal so badly that Stevens should be allowed to start the process over.
Stevens, now 60, went on trial in Hocking County Common Pleas Court in 2021, for having allegedly planned the 2013 burglary of his cousin’s South Bloomingville home while the man was out of state for the Christmas holidays, and having assigned the commission of the crime to a “crew” of accomplices. Despite the facts that the burglary had occurred eight years earlier, that Stevens had not been indicted for it until six years after it happened, and that the prosecution did not claim that Stevens physically took part in the break-in, a jury found him guilty of burglary with a gun specification, complicity to burglary, and grand theft.
Stevens appealed that outcome to the Fourth District Court, represented by attorney Felice Harris, whom he had brought in to replace an earlier appeal attorney, Brian Jones. Harris argued in an appeal brief that Stevens’ trial had been flawed in four ways:
• the prosecution didn’t produce sufficient evidence to justify convicting him;
• an alleged record of phone calls between Stevens and his accomplices, presented as evidence by the prosecution, was not properly authenticated and should have been excluded;
• Stevens’ trial defense attorney provided ineffective assistance by not moving to dismiss the indictment against him based on the six-year delay in filing it; and
• the court improperly allowed the state to use evidence from a recorded conversation between Stevens and an alleged accomplice, which the prosecution claimed included references to other thefts the two had taken part in together.
The appeals court did not find these arguments persuasive, and last September issued a decision upholding Stevens’ conviction. Harris filed a motion asking the court to reconsider that ruling, but it was denied . At that point Stevens replaced Harris with Stephen E. Palmer, who in December filed an application asking the court to reopen the appeal and essentially start it over.
This is called for, Palmer maintained, because in Harris’s appeal brief, she had overlooked two “obvious and significant issues” that she should have raised in the appeal.
Her first big mistake, he said, was not arguing that Stevens’ conviction went against the “manifest weight of the evidence,” and her second was not arguing that Stevens’ trial attorney was ineffective, because he did not challenge hearsay testimony related to the disputed phone records.
In a memorandum in opposition filed Feb. 23, Special Prosecutor Andrea K. Boyd asks the appeals court to reject Stevens’ bid to reopen his appeal, arguing that neither of Palmer’s arguments hold up.
Though Palmer cites a number of things in the trial record that he says support his view that there was no competent, credible evidence to justify convicting Stevens, Boyd says he “cherry picks” the record and ignores large parts of it.
Factual claims that Palmer calls unsupported, Boyd says are backed by evidence. These include the fact that the members of Stevens’ crew did enter the home; that they had firearms under their control; and that after they were scared off and fled the home, when they came back it was likely to be occupied by the homeowner’s friends and relatives.
Other evidence pointing to Stevens’ guilt, Boyd says, includes a recording made surreptitiously of a conversation Stevens had with an alleged accomplice following the break-in, in which he “never denied participation in the crimes” when asked about them directly.
On the issue of the phone records, Boyd notes that the appeals court has already acknowledged that they were hearsay evidence and therefore inadmissible. The court then went on to find, however, that the trial court’s failing to exclude them did not justify overturning Stevens’ conviction, because even if they had been excluded, the appeals court was not convinced the trial outcome would have been any different. The failure of Stevens’ trial attorney to challenge the introduction of the records, then, does not qualify as incompetence, Boyd concludes.
Email at jphillips@logandaily.com
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