Article published December 31, 2003
Bergsmark asks appellate court for 4th extension
By MARK REITER
BLADE STAFF WRITER
Edwin Bergsmark, who was sentenced to 60 days in jail eight months ago for writing bogus checks and forgery, yesterday asked for his fourth extension to spell out why he is appealing his conviction.
The 30-day extension likely to be considered today would further delay the case of Bergsmark - a former banker and lawyer who was convicted in March - as his attorney, Jerome Phillips, works on the appeal to overturn his March 19 felony conviction in the Ohio 6th District Court of Appeals.
A retired appellate court judge said if an extension is granted, it could be the last.
Melvin Resnick said requests for repeated extensions could cause the court to dismiss a appeal. Judge Resnick, who stepped down from the court in February after serving 13 years, said it is rare to continue a deadline for a fourth or fifth extension.
"Usually we sent them a warning that the appeal will be dismissed unless the appellate brief is filed within 30 days," Judge Resnick said.
The Lucas County Prosecutor’s Office has 10 days to object to the extension.
Among the reasons given by Mr. Phillips for the delay is the magnitude of the trial transcript, 1,200 pages of documents, evidence, and testimony from the five-day trial.
"The issues involved in the case are unique and complicated," he said.
The transcript is equivalent in thickness to about three Toledo telephone directories. The court reporter who transcribed the record was given an extension, eventually filing the document with the appellate court on Aug. 27.
Within the transcript are potential issues that Bergsmark could use to appeal his conviction or win a new trial.
"The primary goal of the appeal is to show that the state has not proven its case and reverse the conviction," Mr. Phillips said.
"The prosecutors did not present enough evidence to prove their case," he said.
Bergsmark, a former businessman who once owned the area’s largest real estate company, was sentenced by Lucas County Common Pleas Judge Frederick McDonald to 60 days in the Corrections Center of Northwest Ohio, Stryker. He was convicted of writing bad checks to agents of Cavista’s real estate subsidiary.
The checks, which totaled about $38,000, were authorized in December, 2001, for commissions payments to 12 agents who were independent contractors of Cavalear Realty, a Cavista subsidiary. Prosecutors said Bergsmark authorized another 144 checks for about $190,200 to agents, vendors, and businesses.
Bergsmark, 62, of Sylvania Township, also was convicted of forgery for drawing up a dummy lease for an apartment for James Thurston, an arrangement that allowed Thurston, then housing commissioner under Mayor Carty Finkbeiner, to say he met the city’s requirement to have a Toledo address.
Judge McDonald stayed the punishment pending the outcome of the appeal. Mr. Phillips gave notice to the 6th District Court of Appeals in May that his client intended to appeal.
However, his attorneys have not said what the basis of that appeal will be. They have sought and were given three extensions since October while searching for those reasons.
According to Frances King, assistant administrator of the 6th District Court of Appeals, it is up to the discretion of the administrative judge to approve such extensions.
In the Bergsmark appeal, the extension was approved, usually within days of the request, by Judge Peter Handwork.
Ms. King said the Appellate Rules of Procedures for Ohio’s 12 districts doesn’t limit the court to the number of extensions that it will approve; nor is there a provision for limits in the local rules of the appeals court.
The 6th District Court hears appeals from common pleas, juvenile, and municipal courts in Lucas, Erie, Fulton, Huron, Ottawa, Sandusky, and Wood counties. Last year, about 700 cases in the counties were appealed to the court.
Court procedures allow for the prosecutor’s office to file objections to motions asking for continuances on appellate briefs. Such objections - called "memorandum in opposition" - must be submitted within 10 days.
But, opposition is unlikely because extensions for continuances are almost always granted as soon as they are filed, Ms. King said.
Prosecutor Julia Bates said her office has handled appeals in which attorneys for defendants have received up to eight and 13 continuances to file an appellate brief.
Mrs. Bates said a Toledo man who was convicted of robbery in January recently asked for a sixth extension in his attempt to appeal his case. However, the defendant was given a four-year prison sentence but did not have the punishment stayed by a judge.
Mrs. Bates said it would be unusual for a judge to lift the incarceration for a person convicted of a violent crime.
Thurston, of Perrysburg Township, was convicted of false registration and illegal. He has fulfilled the 30-day jail sentence imposed by Judge McDonald. Thurston testified at Bergsmark’s trial, and pleaded guilty several days later.
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