Akron’s 9th District Court of Appeals has overturned all but six of the 69 felony convictions related to what was once a massive indictment accusing David Willan of widespread mortgage and securities fraud in running the former Evergreen Corp.
In its decision Wednesday, the appeals court sent the case back to the Summit County trial court for reconsideration of Willan’s mandatory, 10-year prison sentence for engaging in a pattern of corrupt activity.
The 2-1 appellate ruling found the sentence should have been discretionary, involving a prison term anywhere from three years to 10 years.
The vast majority of Willan’s convictions, now overturned, involved alleged financial crimes pertaining to Evergreen’s system of mortgage loans and small loans to low-income homeowners, in addition to accusations he was an unlicensed dealer in securities used to raise funds for his company.
District Judge Eve Belfance, who wrote the majority opinion, said in her findings the legislature intended for the mandatory sentence to apply primarily to major drug-trafficking offenses, sexual crimes and kidnapping.
Judge Clair E. Dickinson concurred; Judge Donna J. Carr dissented.
In a statement released after Willan’s lawyers informed him of the ruling by phone in prison, Willan said: “I am happy that I was vindicated on the most important aspect of my behavior in running a business that I worked so hard to build, particularly in the reversals of the convictions for false registration of the debt securities, securities fraud, theft and theft from the elderly.”
The ruling also reversed a first-degree felony conviction of aggravated theft.
After Summit County authorities returned a 147-count secret indictment against Willan and many of his employees in December 2007, including 108 charges against him alone, he was convicted in two separate trials of a total of 69 felony offenses.
Retired Common Pleas Judge James Murphy, who handled the case by appointment, sentenced Willan in 2009 to 16 years in prison.
Three of the felony convictions the 9th District upheld were for making false statements about the payment of commissions for the sale of Evergreen’s high-interest-yielding securities. Prosecutors needed those offenses to build a case on the most serious crime: engaging in a pattern of corrupt activity.
Wednesday’s ruling also upheld a felony conviction for tampering with records and a misdemeanor offense for falsification.
The immediate impact of the appellate decision is not clear because prosecutors can appeal.
Prosecutors on an organized crime task force from the Ohio Attorney General’s Office handled the case in court. A spokesman for the agency said its lawyers were reviewing the 56-page decision and were unable to comment.
Summit County prosecutors filed the 2007 indictment against Willan after sheriff’s detectives investigated the case.
April Wiesner, chief spokesperson for county Prosecutor Sherri Bevan Walsh, said the agency also was reviewing the lengthy decision and considering two options: proceed with resentencing or appeal to the Ohio Supreme Court.
Wiesner had no further comments.
Willan’s lead defense counsel, Bill Whitaker, said he and co-counsel Andrea Whitaker, his daughter, were “enormously pleased that Mr. Willan was vindicated on nearly all of the crimes set forth in the 147-count indictment.”
The remaining securities convictions, Whitaker explained, were “for giving an answer on a single [securities] form that he believed to be accurate, as did his counsel at the time it was signed.”
Ed Meyer can be reached at 330-996-3784 or at emeyer@thebeaconjournal.com.
