Man serving time for stealing from father appeals to Supreme Court for new trial

LACONIA — A former Center Harbor resident who is serving time in prison for stealing money belonging to his father and then using the funds for himself is appealing to the state Supreme Court for a new trial on the grounds his defense attorney mishandled the case.

Keith C. Fitzgerald, 54, is currently serving a 10- to 30-year sentence after being convicted on March 29, 2017, in Belknap Superior Court to multiple counts of theft by unauthorized taking.

The appeal to the state’s highest court comes after the trial judge in April denied Fitzgerald’s bid for a new trial on the grounds that his conviction was due to his original attorney’s unprofessional errors.

Fitzgerald was indicted on five counts of theft by unauthorized taking, charging that he transferred funds out of joint accounts he had with his father, Clifford L. Fitzgerald Jr., and then placed the money in his own personal accounts.

These transfers took place without the father’s knowledge during the summer of 2010 when the elder Fitzgerald was dying from liver cancer, and had given his power of attorney to his son, according to court records. The father died soon afterward, in September 2010.

According to court records, Keith Fitzgerald allegedly used the money to, among other things, purchase two aircraft, and to pay down the balance on one of his credit card accounts.

Court records also show Fitzgerald rejected a plea offer under which he would have served five to 12 years in prison and been required to pay $409,980 in restitution to his father’s estate.

The plea offer also stated the prosecution intended to introduce evidence “obtained from two 2009 bankruptcy cases and (the younger Fitzgerald’s) 2008 divorce case and the 2011 probate case brought by the Estate of Clifford L. Fitzgerald Jr.”

The case ultimately went to trial in March 2017.

Michael Ramsdell, Keith Fitzgerald’s current attorney, is arguing that Fitzgerald’s earlier attorney, Robert Hunt, failed to challenge the indictments, including the sentencing enhancement that subjected Fitzgerald to an extended term of imprisonment on the grounds he took advantage of his father’s age and physical condition which impaired his ability to manage his finances. He further claims that Hunt failed to to advise Fitzgerald about the risks of testifying in his own defense, and then failed to prepare him adequately prior to taking the witness stand.

Under cross-examination at his trial, Fitzgerald made a number of compromising admissions, including that he had paid personal debts with some of his father’s money, that he had not received any permission to transfer his father’s money, and that he had lied in family court about his income, and hid money from the bankruptcy court.

In his ruling, Smukler stated the evidence supporting the charges against the defendant had been presented before Fitzgerald took the stand, thus rejecting the argument that Fitzgerald’s damning admissions were the definitive reason for him being found guilty.

The judge also rejected the argument that the failure of the Fitzgerald’s trial attorney to challenge the sentence enhancement violated his constitutional right to effective legal counsel because the length of the sentence he received was within the sentencing guidelines, absent the enhancement.

Fitzgerald’s attorney and the state Attorney General’s Office have until September and October respectively to submit their briefs to the Supreme Court after which the court will schedule oral arguments.