Ex-cop has conviction for gun sales overturned
Buyer’s civil rights had been restored before the sale.
A federal judge CLEVELAND — has overturned a conviction against a former North Randall police officer serving more than five years in prison on accusations that he sold guns to two people he knew were felons.
Chief U.S. District Judge Patricia Gaughan ruled Thursday that Kevin Lumpkin’s conviction for the unlawful sale of a firearm to a felon cannot stand because, under federal law, the woman’s civil rights had been restored and thus had no limitations on her rights to own firearms.
Lumpkin, 31, is entitled to a new sentencing hearing because Lumpkin’s attorney Jay Milano did not catch this fact, and the error constituted ineffective assistance of counsel, Gaughan wrote. A hearing date has not been set.
Lumpkin was found guilty in December 2015 of selling rifles, pistols and a ballistic vest to Michelle Devine and Calvin Kelly, both felons. Lumpkin’s deeds were first discovered in 2013 when Cleveland police found boxes for two of the guns while investigating a domestic violence complaint between Kelly and Devine. Another pistol was recovered and traced to Lumpkin in April 2014 during a traffic stop in Solon. Devine testified she gave the gun to the suspect’s brother.
Lumpkin lost his appeal and filed a motion without a lawyer asking a judge to again overturn his case on several grounds, including that Devine’s Ohio civil rights to vote, hold public office and serve on a jury had been automatically restored upon her release from prison.
Devine was convicted in 2005 of aggravated theft — a fourth-degree felony — and was sentenced to six months in prison.
It is illegal for a someone to sell a gun to a person they know has been convicted of a crime punishable by a year or more in prison, Gaughan wrote in a November ruling. However, the federal law definition of a crime punishable by a year or more in prison also says that “any conviction...for which a person ...has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such ... restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearm.”
After more briefing, in which federal prosecutors did not dispute that Devine’s rights were restored, Gaughan ruled Thursday in Lumpkin’s favor.
Federal prosecutors argued that Lumpkin wasn’t harmed by the error because he is serving two 63-month sentences, which Gaughan ran concurrently. In other words, if one conviction went away, the sentence for the other conviction was the exact same and wouldn’t lessen his time in prison.
Gaughan said while she may have still sentenced him the same way, being sentenced on two counts instead of one has “collateral consequences,” she wrote.
Milano said Friday that the area of law that affected this portion of Lumpkin’s case was “technical.” While he didn’t catch the error, neither did federal prosecutors nor the attorney who represented Lumpkin on appeal.
Still, Milano said he hopes it helps Lumpkin.
Lumpkin worked at the North Randall Police Department from 2011 up until his conviction.