Man Jailed for Breaking Law That Wasn’t in Effect
Conviction under voided ‘importuning’ law leads to time for later
charge
Gay
People’s Chronicle, September 19, 2003
P.O. Box 5426, Cleveland, Ohio 44101
Fax 216-631-1052
Email chronicle@chronohio.com http://www.gaypeopleschronicle.com/stories03/03sep19.htm#story4
By Eric Resnick
Warren—Three weeks after he got out of jail, Keith
Phillips learned that the law that led to his incarceration had been voided by
the Ohio Supreme Court seven months before his arrest.
Phillips, 20 at the time and living in Youngstown, was charged on December
16, 2002 with violating Ohio’s importuning law, which makes it a crime to
ask someone of the same gender for sex if it would offend them.
But the law was no longer in effect. It had been declared unconstitutional
by the state’s highest court on May 15 of that year, partly because the same
act is legal for heterosexuals.
Phillips didn’t know this. Without a lawyer, he pleaded no contest in
March to the misdemeanor charge. Warren Municipal Court Judge Thomas P.
Gysegem gave the gay man a suspended 180-day sentence and five years
probation, including sex offender courses, monitoring of his computer, and a
$600 fine.
Three weeks later, on April 16, Phillips was arrested on another
importuning charge. Because of the first conviction and suspended sentence, he
had to serve four months in jail. He was released August 14.
Notes traded with co-worker
The first charge came from an interaction Phillips had with co-worker
Richard Cecconi III, then age 17, while both were employed by Civic
Development Group, a telemarketing firm in Warren. “It was conversation,”
said Phillips. “[Cecconi] asked me questions like, ‘How do you know’ you
are gay, and ‘What do gay people do in bed?’”
Phillips said he and Cecconi talked, teased, and sent notes “with sexual
jokes inside” to each other until late November 2002, when Cecconi went to
the police.
Soon after, Warren detective Sgt. Daniel Hudak called Phillips at work and
told him to come to the police station.
Phillips went alone and admitted to Hudak that he had spoken with Cecconi.
A couple of weeks later, Phillips said he was called to the station again by
Hudak “to have a photo taken.” Again, Phillips went alone and was
photographed and charged with importuning.
At the arraignment without a lawyer, Phillips pleaded no contest to the
first-degree misdemeanor charge, not knowing the law had been voided.
Hudak might not have known, either. According to Warren Police Chief John
Mandopoulos, “We are overseen by the prosecutor’s office” when it comes
to filing charges.
“It’s up to local prosecutors to inform law enforcement of changes in
the law,” said Ohio Attorney General spokesperson Bob Beasley. It is the
responsibility of the judge and prosecutor to ensure that defendants are tried
only for violating existing laws.
The Supreme Court’s State v. Thompson ruling striking down the
importuning law was widely publicized in media accounts and legal
publications. Also, all members of the Ohio bar receive a weekly journal
informing them of high court decisions and changes in the Ohio Revised Code.
The voiding of the importuning law appeared in the May 24, 2002 journal.
Gysegem refused to comment. Warren Assistant Prosecutor Traci Rose, who
handled Phillips’ prosecution, hung up on this reporter at the mention of
Phillips’ name.
Diagnosis: ‘Outside the cultural norm”
Prior to sentencing by Gysegem, Phillips was required to undergo a
pre-sentence evaluation by social worker Linda Blum at the Forensic
Psychiatric Center of Northeast Ohio.
In that report, Blum entered a diagnosis of “Paraphilia, not otherwise
specified.”
Paraphilia is defined as “sexual desires or activities that lie outside
the cultural norm.” This includes a long list ranging from acts almost every
adult has done to things like bestiality. Until the 1980s, the diagnosis was
given to all gays and lesbians.
Blum concluded that Phillips had a medium-high risk of re-offending. She
recommended “he have no contact with individuals under the age of
eighteen.”
Blum based her conclusions on Phillips’ statement that he participated in
gay chat rooms, his “having an unrelated victim, a male victim,” and that
Phillips is “under the age of twenty-five . . . having never lived with a
lover or committed partner for at least two years.”
Blum also got information, mostly Cecconi’s account of events, from Hudak,
including an allegation that Phillips bought beer for Cecconi and a friend.
But Hudak did not charge Phillips with any alcohol-related offense or
corruption of a minor. Still, that presumption was before Gysegem when
Phillips was sentenced.
Hudak and his supervisor, Captain Tim Roberts, refused to comment.
Teen makes new accusation
A few weeks after sentencing, on April 16, Phillips was arrested at work,
this time charged with felony importuning under a section of the law still in
effect that deals with juveniles.
Phillips said he was driving on Ohio 422 three days earlier when a blue car
chased him, swerved in front of him, cut him off, and tried to run him off the
road.
Phillips said he escaped into a parking lot across the road from his
workplace. He said there were two occupants in the blue car, a 14-year-old boy
and his father, Wayne Trimble, and that Trimble got out of the car and began
yelling at him. Phillips thought he was being carjacked, and called his
employer for help.
A police officer arrived on the scene and, after identifying Phillips,
refused to take a report from him.
However, the youth charged in a statement made the day Phillips was
arrested that on April 11 he was approached by a man in a car who offered him
oral sex.
The youth’s statement, which was handled by Hudak, says two days after
that he was playing horseshoes in his yard with his father when Phillips’
car went past them.
The teen said Phillips was the man who had approached him. “I noticed him
right off the bat in the same car.” It was then that the two got in their
car and began to chase Phillips.
However, descriptions given by the teen of the man who asked him for sex do
not match Phillips, even though he saw him during the chase. The youth’s
description of the vehicle the man was driving does not match Phillips’ car,
either.
Phillips produced his time card showing he was at work during the time of
the alleged incident and a list of co-workers who would back it up, but the
case never went to trial.
By then, Phillips was represented by Youngstown attorney Benjamin Joltin,
in the law firm headed by State Sen. Marc Dann. Rose was again the prosecutor
and Gysegem was the judge.
Joltin and Dann advised Phillips to plead no contest to a misdemeanor
importuning charge and take the negotiated four months in jail.
Joltin said the decision to take the plea deal was Phillips.’ Joltin
objected to a reporter’s questions about the plea deal and ended the
conversation. Later, Dann called and fielded questions while Joltin was heard
in the background feeding him information.
“I stand behind the decision [Phillips] made and the advice we gave
him,” said Dann. “It’s municipal court, and the idea is to keep him out
of jail.”
Dann said Phillips would have been held in jail an additional six months on
a probation violation at Gysegem’s discretion during the time it would have
taken to defend him on the second charge.
The arraigning judge, Terry Ivanchak, ordered Phillips’ bond set at
$10,000, which he could not pay. Gysegem denied a motion against the bond, and
at sentencing called Phillips “a danger to the community” and said
Phillips was “stealing the innocence from the youth of Warren.”
Dann said he and Joltin began representing Phillips after the 30-day
deadline to appeal the conviction on the first importuning charge had passed.
Dann acknowledged that if Phillips hadn’t been convicted of importuning the
first time, the second charge could have been fought without fear of the
additional jail time.
There is no time limit on filing a motion to vacate both convictions on
constitutional grounds now that Phillips is out of jail. “We have never
talked about a motion to vacate,” said Dann, adding, “It would just go
back to Judge Gysegem, anyway.”
Phillips is scheduled for a probation hearing before Gysegem December 1.
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