African citizen takes plea on sex-crime case, faces no more jail

A man from Africa who four years ago was found guilty of a felony sex crime in Athens County, but later got a judge to overturn his conviction, has now pleaded guilty to a greatly reduced charge in Athens County Common Pleas Court.

Gina A. Gbessay, 27, who is originally from the African nation of Sierra Leone, on Thursday agreed to plead to a charge of sexual imposition, a third-degree misdemeanor. Gbessay received no sentence for the offense, because he has already spent about six months in prison on his earlier conviction – a greater sentence than any he could get for the new crime to which he just admitted guilt.

He also, after being released from prison in Ohio, spent some time in a federal detention facility in New York, while federal officials tried to decide whether to deport him based on his felony conviction.

Gbessay has lived in the United States as a legal permanent resident since 1988. In September 2008, he pleaded guilty in Athens County Common Pleas Court to having unlawful sexual conduct with a 14-year-old girl. In April 2009, Judge Michael Ward sentenced him to 18 months in prison, and ordered him to register with state authorities as a Tier II sexual predator.

In August 2009, Gbessay was granted judicial release from prison, but then failed to report his whereabouts to his local sheriff, which he was required to do as a registered Tier II sexual predator. Local authorities issued a warrant for his arrest, but withdrew it after learning that federal immigration officials had picked Gbessay up on an immigration detainer, with an eye to possibly deporting him.

From inside the federal detention facility, Gbessay began filing a flurry of appeals, citing a March 2010 U.S. Supreme Court case, Padilla v. Commonwealth of Kentucky. In that case, the high court had ruled that if a non-citizen is charged with a crime, his attorney has a constitutional obligation to warn him that a guilty plea might expose him to the risk of being deported. This apparently did not happen in Gbessay's case.

Both Athens County Common Pleas Court and 4^th District Court of Appeals rejected Gbessay's self-penned court filings. After the Ohio Public Defender's office took on his case, however, a defense attorney was able to persuade Judge Ward to overturn Gbessay's 2008 conviction.

Attorney Sarah G. LoPresti did so by citing not only the Padilla ruling, but also a 1989 Ohio law that clearly requires courts to warn non-citizen first-time offenders, before they plead guilty to anything more serious than a minor misdemeanor, that their plea will put them at risk of deportation.

The Athens County Prosecutor's Office opposed LoPresti's motion. Though assistant prosecutor George Reitmeier admitted that Gbessay had not been warned at sentencing about deportation consequences, he argued that a defendant "bears the burden to show that he or she is not a citizen, and that there may be deportation, exclusion or naturalization consequences resulting from the plea."

Ward, however, agreed to set aside Gbessay's 2008 conviction, leading to last week's plea bargain.

Athens County Prosecutor Keller Blackburn said Friday that one factor driving the plea agreement is that the victim in the case, who is now over 18 and reportedly married, did not respond when the prosecutor's office tried to contact her for input. He said the woman's father indicated that she had no interest in getting involved in Gbessay's case.

"She has moved on," Blackburn reported. "No response from her was ever received."

He noted that while Gbessay will serve no jail or prison time, he did have to register as a sex offender under Ohio's version of Megan's law, and will be required to register with his local sheriff annually for the next 10 years.

As for the deportation issue, Blackburn said federal authorities could presumably still try to send Gbessay back to Sierra Leone if they chose to. He noted that his office had no role or interest in trying to get Gbessay deported.

"We were never committed to that," he said. "(It was) only our (criminal) conviction (that) caused that."