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Evergreen Homes Case Accepted by U.S. Supreme Court
RICHARD WEINER
Legal News Reporter
Published: June 23, 2014
The United States Supreme Court recently granted certiorari to a Summit County Evergreen Homes case, State v. Willan (Supreme Court cite 13-7621). The case concerns the criminal charges brought against David Willan, who was originally convicted of 69 felony offenses in two separate trials in 2009, and who is currently serving out a 16-year prison sentence.
The Supreme Court’s ruling is of a type known as a “GVR,” which stands for “granted, vacated, remanded.” A GVR, which I published without further comment by the Court, generally comes from the Supreme Court when the law changed while the case is pending.
The case was vacated and remanded to the Ohio Supreme Court, which has not further ruled on it as of this writing.
“The law changed during the time that Mr. Willan’s appeal was pending,” said Willan’s attorney Andrea Whitaker. Whitaker and her father, William T. Whitaker, of the Akron firm William T. Whitaker Co., L.P.A., have represented Willan throughout the entire criminal case, at trial and through the appeals process.
The Supreme Court’s agreement to hear the Willan case is rare indeed.
Certiorari (known in the legal community as “cert”) is the process by which the U.S. Supreme Court agrees to hear a case. Very few of those petitions for cert are granted on a percentage basis.
Statistics published by the Supreme Court, between June 30, 2011 and July 2, 2012, the Court disposed of 7,654 appeals and granted 63 for oral argument (.862 percent). There are a few GVR’s granted per year, which may bring the ratio up to 1 percent per year. The statistics from the previous year were about the same (almost exactly 1 percent).
The Ohio Supreme Court is faced with several options at this point, said Whitaker. “The court could remand the case to the appellate court, it could send it down to the trial court, or it could make its own decision,” she said.
The variety of the Ohio Supreme Court’s options is reflective of the complexity of the case and its convoluted factual and procedural history. Whitaker said.
David Willan was the founder of Evergreen Homes, a company that bought real estate, and then renovated and resold the homes. The company also built homes, and was also involved in financing the purchases, many in the exploding subprime mortgage market of the mid-2000’s. In all, Evergreen was reported to have sold about 300 homes from its beginnings until it was forced into bankruptcy in 2008.
(Please note that a Google search for “Evergreen Homes Akron” may turn up a company with a similar name that currently does business in northeast Ohio. There is no connection between the two, said Christopher Tamario, who represents Brian Giovinazzi, who is the owner of that Cleveland company).
Facing a 147-count secret indictment, Willan was convicted of 70 counts in two trials, including charges of engaging in a pattern of corrupt activity, false representation in the registering of securities, theft and theft from the elderly, and a RICO charge.
On June 29, 2009, Willan was sentenced to a total of 16 years in prison, which included a mandatory 10-year sentence for the RICO charge. Willan is currently still incarcerated.
The trial court had determined that those 10 years were mandatory under O.R.C. 2929.14(D)(3)(a), and that the RICO conviction was a felony of the first degree, as were the theft and theft from the elderly charges. Those charges were, according to the trial court, predicate acts that automatically engaged the mandatory 10-year sentencing. The maximum sentence at the time for a felony 1 conviction under that statute was 10 years.
That fact became the key to the defendant’s argument at the Supreme Court.
On appeal, the 9th District Court of Appeals overturned 90 percent of Willan’s convictions based on insufficiency of the evidence, including the convictions for theft and theft from the elderly.
The appellate court then determined that Ohio law did not impose that mandatory 10-year sentence on Willan.
Both sides appealed to the Ohio Supreme Court, which reversed the 9th District’s holding regarding the mandatory sentence, and re-imposed it on Willan, who then appealed to the U.S Supreme Court.
However, while that case was pending before the 9th District, the U.S. Supreme Court decided Alleyne v. United States.
The Alleyne case related directly to the Willan case on the issue of mandatory minimum sentencing on two issues, both concerning the jury form, said Whitaker.
The first issue was that the jury form, according to the petition for cert, “…provides no indication that the jury determined that a felony of the first degree was a predicate act to the RICO conviction. A felony of the first degree as a predicate act is the factor the trial court and the Ohio Supreme Court determined necessitated a mandatory minimum sentence of 10 years.”
The second relevant issue between the two cases, said Whitaker, was a lack of ability in the jury form to determine any condition precedent required to impose the mandatory minimum sentence.
Furthermore, the Ohio statute, she said, was not designed to be applicable to a case.
“These are not technicalities,” said Whitaker, who argued that the Willan case comes under the due process/ impartial jury clause of the Sixth Amendment.
The petition for cert argued that Willan’s due process rights and rights to an impartial jury were violated because the jury was not aware of the potential of the imposition of the mandatory sentence, said Whitaker, and so, under Alleyne, the case needed to be reversed and remanded.
Another larger issue in the Alleyne and Willan cases is the current disfavor of mandatory minimum sentencing altogether under the current U.S. Department of Justice-- although, at the same time, Whitaker does note that the Willan case comes under state, and not federal law. Nevertheless, she said, it is certainly in the discussion.
Although Alleyne was decided before the Ohio Supreme Court’s decision, said Whitaker, that court did not consider the Alleyne case in its Willan decision. That logic apparently swayed the U.S. Supreme Court to grant its GVR (which came with no further comment).
Overall, Whitaker said that the discussion around mandatory minimum sentences centers around letting a jury determine the appropriate prison sentence of someone convicted of a crime, rather than letting a mandatory statute determine it.
In the meantime, as the discussion and court actions continue, David Willan waits to see when he will be released from prison.