NEW TWIST: Imprisoned Dayton restaurant owner Eva Christian wins appeal for early release

Credit: Dayton.com

Imprisoned Dayton restaurant owner Eva Christian has won an appeal for early release, after serving more than eight years of a nine-year sentence.

Credit: Dayton.com

Former Oregon District and Dayton Mall restaurant owner Eva Christian has served more than eight years of a nine-year prison sentence in part for her actions on Christmas Eve 2009, when she set her own Miami Twp. restaurant on fire as part of a scheme to collect insurance money.

But on Friday, Christian won an appeals-court ruling that could set her free early, sometime before her scheduled release date of May 8, 2021.

“The war for Eva Christian’s release is finally over,” Brock Schoenlein, Christian’s court-appointed attorney who has handled all of her appeals following her initial conviction and sentencing, told this news outlet via email on Sunday. “Eva will be released as quickly as she can be brought back to court.”

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Christian was convicted in 2012 of five criminal counts following a two-week jury trial, and her appeals of those convictions have traveled a legally complex and circuitous route up and down and through the state’s legal chain, from Montgomery County Common Pleas Court to the Ohio 2nd District Court of Appeals to the Ohio Supreme Court.

The latest decision was issued on Friday by a three-judge panel of the Ohio 2nd District Court of Appeals. In a 2-1 decision, the appeals court ruled that Montgomery County Common Pleas Judge Barbara Gorman, who presided over the 2012 trial, improperly re-sentenced Christian to her original nine-year sentence even after earlier appeals had reduced the severity of three of the five charges Christian was convicted on.

Eva Christian stands before Montgomery County Common Pleas Judge Barbara P. Gorman at her original sentencing hearing in 2012. Staff file photo by Jim Witmer
Eva Christian stands before Montgomery County Common Pleas Judge Barbara P. Gorman at her original sentencing hearing in 2012. Staff file photo by Jim Witmer

Credit: Jim Witmer

Credit: Jim Witmer

“Prosecutors of course have the ability to ask the Ohio Supreme Court to hear this matter for a third time, but that prospect seems unlikely to me,” Schoenlein said. “I know of no practical mechanism that would stop Eva Christian from being released prior to any such third review by the Ohio Supreme Court.”

But Montgomery County prosecutors say they have not ruled out that possibility. A spokeswoman for the Montgomery County Prosecutor’s Office said late Friday that prosecutors were reviewing the appeals court decision.

“Based on today’s split decision, the defendant will not be automatically released from the penitentiary but must be re-sentenced by the trial judge,” the spokeswoman said. “We feel that the sentence the defendant received by the trial court was appropriate and justified. We will decide in the near future whether we will appeal today’s decision to the Supreme Court of Ohio.”

There is no guarantee, however, that the Ohio Supreme Court will hear another appeal, after making multiple rulings in the case already. And Christian could be released pending the outcome of any such appeal.

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Christian founded and owned the now-defunct Cafe Boulevard (later Boulevard Haus) for nearly 15 years in Dayton’s Oregon District. The space is now Lily’s Bistro. Christian also founded and owned Cena Brazilian Steakhouse in Miami Twp. She was was convicted in 2012 of masterminding a scheme in 2009 to hire others to set Cena on fire, and later trying to set it on fire herself, and of staging a break-in at her Washington Twp. residence, all in order to collect insurance money.

Both the Montgomery County Prosecutors Office and Christian’s attorney agree that the current appeal could potentially shave one year off of her nine-year sentence. Christian has been in state prison since June 7, 2012, so she is into her final year of her nine-year sentence. It appears that in light of the most recent appeals-court decision, she has essentially served her entire sentence and is therefore eligible for release. But a re-sentencing hearing in Judge Gorman’s courtroom will be the next step in the case.

Eva Christian in her Oregon District restaurant Cafe Boulevard. 2009 file photo by Jim Witmer
Eva Christian in her Oregon District restaurant Cafe Boulevard. 2009 file photo by Jim Witmer

Credit: for USA TODAY

Credit: for USA TODAY

It’s not clear what will happen to the former restaurant owner when she is released from prison. Montgomery County prosecutors have said they will seek to have her deported upon release, although that deportation decision will be made by federal authorities. Although she has lived in the U.S. for decades, Christian is not an American citizen. She was born in Croatia and raised in Germany, and has German citizenship, although she was considered a “permanent resident” of the U.S. after marrying a U.S. citizen. The couple later divorced.

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Testimony by prosecution witnesses during the 2012 trial suggested that Christian conspired three years earlier with two accomplices in the break-in of her home and in the 2009 restaurant vandalism. One of the criminal counts that Christian was found guilty of was a felony criminal charge of “engaging in a pattern of corrupt activity” — often used to prosecute organized-crime cases. That count was originally classified as a first-degree felony, but during appeals, it was reduced in severity to a second-degree felony.

Christian maintained her innocence throughout the original 2012 trial, telling Judge Gorman prior to sentencing that she “cannot confess to a crime I have not committed.” Judge Gorman denied Christian’s request to avoid prison, telling the former restaurant owner, “I don’t think you have a conscience.”

The next time she stood before Judge Gorman — for her re-sentencing in 2016 in light of the reduction of the severity of three of the criminal counts she was convicted of — Christian’s demeanor had changed from defiant to contrite. Clutching a folded-up tissue, the former restaurant owner told the judge she was sorry for the pain she caused family, friends and the employees of her restaurants, whom she said she also considered family.

“I realize that I will probably never be able to repair the damage completely,” Christian said. “It disturbs me how deeply how many people were affected and suffered. It has consumed me and is haunting me every day.”

Judge Gorman was not persuaded. The judge noted that Christian tearfully pleaded for leniency four years earlier in the very same courtroom — only then, she refused to admit her guilt.

“I don’t know if you’ve really made a change, or if you’re a really good actress,” the judge told Christian.

Gorman recounted the facts of the case and noted that Christian’s efforts through a co-conspirator to set fire to her Miami Twp. restaurant could have cost lives. The restaurant was attached to other retail stores in front of the Dayton Mall. And her scheme to have her own home shot up could have harmed or killed Christian’s own son, Gorman said.

Prosecutors said the judge was within her legal rights to re-impose the original nine-year sentence, but ultimately, the court of appeals judges disagreed.

In an opinion written by appeals court judge Mary E. Donovan and joined by Jeffrey E. Froelich, the court of appeals concluded that Gorman had abused her legal discretion when she re-sentenced Christian to nine years in prison after the severity of Christian’s crimes had been lessened, given that no new facts had been presented in court.

“This case marks the most litigation that I have ever seen surrounding just one year of someone’s life,” Schoenlein, Christian’s appeals attorney, said Sunday. “But if that one year in dispute was of my own life, I would certainly never want my attorney to abandon that fight.”