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Greenfield man convicted of rape last year resentenced to same prison terms after appellate court ruling

By
Caitlin Forsha, The Highland County Press

A year after a Greenfield man was sentenced to 20 years to life in prison after a jury found him guilty of raping a juvenile, he was resentenced — to the exact same prison term — Wednesday morning following an appellate court decision.

As previously reported, following a trial that lasted under three hours, it took a jury seated in Highland County Common Pleas Court half an hour to find Gary Lee Pettiford, 71, guilty of two counts of rape, both first-degree felonies, in August 2023. He was subsequently sentenced by Judge Rocky Coss to 20 years to life in prison.

The Fourth District Court of Appeals partially vacated and partially affirmed the judgment. It was remanded back to Highland County Common Pleas Court “for the limited purpose of resentencing,” after the appellate court ruled that “because the trial court failed to make all the requisite findings under R.C. 2929.14(C)(4) at the sentencing hearing, we clearly and convincingly find that the order of consecutive sentences is contrary to law.”

On appeal, Pettiford — represented by attorney Christopher Pagan of Middletown — argued both that he was given an “unlawful sentence” that the state “admitted unlawful evidence” at trial. The appellate court, in a decision written by Judge Michael Hess, overruled the assignment of error on evidence but agreed that “the trial court erred” at sentencing.

According to the appellate court’s decision, Pettiford argued that his sentence was “unlawful” because the “trial court failed to make sufficient findings required by R.C. 2929.14(C)(4) to support the consecutive sentences,” although they were made in the sentencing entry.

The appellate court found that the “trial court’s sentencing entry satisfies” the legal requirements but that they were “unable to discern that the trial court’s oral pronouncements at the sentencing hearing satisfied the pertinent requirements.

“We cannot discern that the trial court made the requisite proportionality finding,” Hess wrote. “Although the court stated it considered the ‘differing courses of conduct and the nature of the criminal conduct,’ there was nothing in the court’s remarks that discussed the proportionality of the sentence to either the seriousness of Pettiford’s conduct or the danger he poses to the public. There was also no discussion of Pettiford’s criminal history, or the great and unusual harm caused by the offenses from which we can discern that the court made findings under R.C. 2929.14(C)(4)(b) or (c), as reflected in the court’s sentencing entry.”

Pettiford, now 72, is currently incarcerated in the Pickaway Correctional Institution. Represented by local attorney J.D. Wagoner, he appeared before Coss Wednesday morning in Highland County Common Pleas Court.

Coss imposed the same sentence Oct. 2 as he did Aug. 21, 2023 — 10 years to life on each count, running consecutively, for a total of 20 years to life in prison. Pettiford had 87 days of jail time credit, in addition to all the time served in prison since Aug. 25 of last year.

“The court finds, in its view, the consecutive sentences are necessary to both protect the public and other young [people] from future crime by this offender,” Coss said. “Further, it’s for the purpose of punishing this offender because there were two separate courses of conduct, which were very egregious, and he was almost caught in the act, as the court recalls.

“Clearly, he poses a danger to the public.”

Two other arguments by Pettiford about sentencing — that “the trial court’s consecutive-sentencing findings made in the sentencing entry are clearly and convincingly not supported by the record,” and that “the postrelease control sanction was contrary to law because the rape offense carried a life sentence so parole, not postrelease control, applied to his sentence” — were not addressed due to the appellate court agreeing with the aforementioned argument.

In addition, regarding the assignment of error that the court “admitted unlawful evidence” — which the appellate court overruled — Pettiford had three different arguments. The first was that the “trial court erred when it permitted the witnesses to be administered their oaths in the clerk’s office instead of in the courtroom in front of the jury.”

Hess wrote that “Pettiford cites no Ohio case law to support his argument that the oath must be administered by the trial judge in the courtroom in front of the jury.” Instead, he said that Pettiford only references a small claims case that “involved a bench trial and the complete failure to administer any oath to any of the witnesses” and “a dissenting opinion in a federal Ninth Circuit case for legal support of his argument that the ‘irregular’ swearing in of witnesses is a structural error that deprives the defendant of his right to confrontation.

“We do not find the analysis of the federal court’s dissenting opinion persuasive,” Hess wrote.

The appellate court judge later added that “Pettiford has failed to provide any legal support” for his argument regarding the oaths and that the court could “find no error, plain or otherwise, in the way the oaths were administered.”

Pettiford’s second argument was that “the DNA scientist failed to state that her opinions were made within a reasonable degree of scientific certainty and therefore were inadmissible.”  

At trial, the state’s expert witness in DNA analysis — Amy Wanken, a forensic scientist from the Ohio Bureau of Criminal Investigation — testified about finding the victim's DNA in Pettiford's underwear. As noted by the appellate court, the scientist’s “expert opinion” was “that such match to anyone else would be rarer than one in one trillion unrelated individuals.

“We reject Pettiford’s argument that the DNA expert’s findings and interpretations were inadmissible under Evid.R. 702(C) because she did not use the magic words ‘within a reasonable degree of scientific certainty’ when giving her findings,” Hess wrote. “Pettiford has failed to meet his burden of showing that plain error occurred in the admission of this expert testimony. Moreover, considering the overwhelming evidence of Pettiford’s guilt, any errors in the admission of this expert testimony would have had no effect on the outcome of this trial.”

The other argument by Pettiford rejected by the Court of Appeals was that the state “presented other-acts evidence that he had abused another juvenile and the trial court failed to weigh whether that evidence was more prejudicial than probative and gave no limiting instructions.”

According to Hess, Pettiford’s argument was regarding the testimony of the investigating officer, Sergeant Jay Beatty, as well as of a juvenile other than the victim, and “in both instances the witnesses were testifying about what [a third witness] had said to them about the incident at Pettiford’s house.

“The State argues that none of this testimony concerns ‘other-acts evidence.’ We agree,” Hess wrote. “The testimony … related directly to the events at issue in the case and provided a background chronology.”

Because those three arguments were not found to be errors, an argument by Pettiford "that cumulative evidentiary errors violated his constitutional right to a fair trial” was also denied by the Court of Appeals.     
 

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