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HomeMy WebLinkAboutCP-21-CR-0361-2002COMMONWEALTH V. BRIAN KEITH RADABAUGH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-0361 CRIMINAL TERM Guido, J., May IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 , 2003 On April 16, 2002, the defendant entered a guilty plea to one consolidated count of forgery, graded a felony of the third degree. ~ We ordered a sentencing report and set May 21, 2002, as the date for sentence.2 On the scheduled date, the defendant was sentenced to undergo 36 months of intermediate punishment subject to certain terms and conditions.3 Up to 240 days was to be served in the restrictive intermediate punishment program to give the defendant the opportunity to address his drug addiction.4 The defendant violated the terms of his intermediate punishment sentence. On January 28, 2003, he was resentenced to undergo a term of imprisonment in a state correctional facility for a period of not less than 15 months nor more than 7 years. He was given credit for time served in prison as well the time he spent in the treatment and halfway house portions of his intermediate punishment sentence.5 ~ As part of the plea, the defendant agreed to make restitution in connection with all charges. See Transcript of Proceedings, April 16, 2002, pp. 2-3. 2 Transcript of Proceedings, April 16, 2002, p. 4. ~ Transcript of Proceedings, May 21, 2002, pp. 7-9. 4 Transcript of Proceedings, May 21, 2002, pp. 7-9. s Transcript of Proceedings, January 28, 2003, p. 6. The credit amounted to more than 8 months. NO. 2002-0361 CRIMINAL On February 11, 2003, the defendant filed a timely motion to modify sentence. In the motion he alleged that he wished to continue his participation in drug and alcohol counseling at the Cumberland County Prison through the Gaudenzia West Shore Outpatient Program.6 We denied the motion on that same date. This timely appeal followed. On appeal the defendant alleges that we relied upon improper factors, i.e. "facts not in evidence at the sentencing proceeding", in formulating the sentence.7 Specifically, he contends that we relied upon information obtained during the time we represented defendant as a public defender.8 We will address those allegations of error in the opinion that follows. We start by stating unequivocally that we did not rely upon any facts we gained from representing the defendant in our days as a public defender.9 While we recognized the defendant as a courtroom regular, we had no independent recollection of our prior representation of him. At the first sentencing hearing in May 2002, we had the benefit of a sentencing report prepared by our probation department. The sentencing guidelines called for a sentence of incarceration, even in the mitigated range, l0 However, defendant and his counsel made a convincing argument that he should be sentenced to the intermediate 6 Motion to Modify Sentence, para. 10. 7 See "Concise Statement of Matters Complained of on Appeal." 8 See "Concise Statement of Matters Complained of on Appeal." 9 We served in the Public Defender's office from 1977 through 1985. We then served in the Cumberland County District Attorney's office until 1992. l0 The sentencing guidelines were as follows: Mitigated Range: 3 Standard Range: 6-16. Aggravated Range: 19. See Sentencing Report, dated May 15, 2002. NO. 2002-0361 CRIMINAL punishment program in order to address his longstanding drug addiction. Despite a lengthy criminal record covering almost twenty years, we agreed to depart from the sentencing guidelines. The following exchange took place prior to sentence: MR. BRAUGHT: I've known Brian a fair amount of time through the court system here, and this is the first time - - and this goes back to when Brian and ! first started - - representing him on this case, this is the first time he said to me, you know, ! need help. Before, ! think, a lot of times he would be in denial or deny that he had any problems. This is the first time. Although he's older. ! mean he's been around for quite a while. This is the first time he's really said listen, this is just - - it's too much. ! now need help, and ! think with that forthrightness on his part for the first time - - ! think he' s got a decent chance - - more than a decent chance at being successful here. THE COURT: Mr. Radabaugh, I can't remember if I defended you or prosecuted you or maybe did both, didn't I? THE DEFENDANT: Yeah, you defended me before, and I came back up in front of you and got a retail theft. THE COURT: And I prosecuted you? So you've been around a long time. You've known him a while, but I've known him a lot longer than that. And, you know what, Mr. Radabaugh, I'm glad to hear what Mr. Braught has to say, and I'm inclined to impose this intermediate punishment sentence, but it's no picnic. THE DEFENDANT: Yeah, ! know. THE COURT. And I've got to tell you, looking at your prior record, we've done about everything that we can do for you at the County level. THE DEFENDANT: Yeah. THE COURT: Okay. So this is sort of a last gasp, and if it doesn't work then we've got to seriously consider state incarceration. THE DEFENDANT: Yeah. THE COURT: So ! hope it works. For your sake, ! hope it works. (emphasis added).~ After the sentence was imposed, we stated the following: Now, this sentence departs from the sentencing guidelines on the low side, and we've done that to give the Defendant one last opportunity to address his long standing addiction, and to grow up. And as ! pointed out previously, this is not a bargain. See Transcript of Proceedings, May 21, 2002, pp. 5-6. NO. 2002-0361 CRIMINAL (emphasis added).~2 At the time of his resentence on January 28, 2003, we relied upon the following facts, all of which were of record: · The defendant had a lengthy criminal record spanning almost twenty years. · The defendant began using cocaine again within a month of his release from the half-way house portion of his intermediate punishment sentence. 14 · The defendant's criminal problems are a direct result of his drug and alcohol addiction. ~5 · The sentencing guidelines call for a minimum sentence of up to 16 months in the standard range. · We initially departed from the sentencing guidelines to give the defendant "one last opportunity to address his long standing addiction, and to grow up.''17 At our request, defendant's counsel filed a brief in support of his Concise Matters Complained of on Appeal. He has identified two statements made by us at the Resentencing Proceedings of January 28, 2003, which he contends support his position on appeal. The crux of his argument is set forth in his brief as follows: ~: See Transcript of Proceedings, May 21, 2002, p. 10. ~ Sentencing Report, dated May 15, 2002, and updated Sentencing Report dated, January 28, 2003. ~4 Petition for Revocation of Intermediate Pumshment, filed January 8, 2003, and Transcript of Proceedings, January 28, 2003, p. 3. ~s Sentencing Report, dated May 15, 2002, Transcript of Proceedings, January 28, 2003, p.3. 16 Sentencing Report, dated May 15, 2002. ~7 Transcript of Proceedings, May 21, 2002, p. 10. NO. 2002-0361 CRIMINAL The court when referring to its representation of Defendant as a public defender specifically stated the following. "I represented Brian when I was a public defender when I was a young man. He just doesn't get the message." And, "I mean, Brian, you've always done a good job of admitting. You knew when I represented you twenty years ago that you had a drug and alcohol problem." The court in making these references was by implication referring to facts not in evidence. These facts would be whatever information the court learned from and about Defendant during the course of the sentencing judge's representation of Defendant as a public defender. (emphasis added). ~8 Defendant quotes both statements out of context. The first was made as part of the following exchange: MR. CLAWGES: Brian has been in court countless times. THE COURT: I know I represented Brian when I was a public defender when I was a young man. He just doesn't get the message. MR. CLAWGES: Well, Brian has made some steps, though. Within the last few months he's at least admitted that he has a problem and taken some steps to address it. THE COURT: He admitted that when I sentenced him the first time. He admitted that every time he's come before the court for the past 20 years. We gave him the opportunity to do something about that, didn't we, Brian? THE DEFENDANT: Yeah. THE COURT: You weren't on the street for more than two weeks before you started using again. THE DEFENDANT: No, I was back out for a month. See, I thought I could do it on my own .... I have been using drugs and drinking alcohol for 22 years .... (emphasis added). 19 We reiterate that we had no specific recollection of representing the defendant. We knew we had represented him only because he told us so at the first sentencing proceeding. As to the other portion of the statement, it was clear from the facts in the record that "He just doesn't get the message." ~8 Brief in Support of Defendant's Concise Statement of Matters Complained of on Appeal, p. 1. 19 Transcript of Proceedings, January 28, 2003, pp. 2-3. NO. 2002-0361 CRIMINAL The second statement complained of was set up by the following exchange between the court and the defendant: THE DEFENDANT:... ! realize, you know, ! can't do this on my own .... THE COURT: You told me that 262 days ago. You told me the same thing. ! told you then that you were in line for a state prison sentence because we can't do anything for you at the county. We bent over backwards, expended a lot of county funds on drug and alcohol treatment for you on halfway houses, on intensive supervision; yet as soon 20 as we put you out on the street, you throw it all away. His attorney then picked up the ball for his client, setting up the second statement defendant complains of: MR. CLAWGES: That's really it. I think what Brian is voicing is that he got over-confident because of some of the tools that he thought he could use, and he just didn't follow through with it like he should. He would be first - - well, he was the first to admit it. THE COURT: He's good at admitting. I mean, Brian, you've always done a good job of admitting. You knew when I represented you 20 years ago that you have a drug and alcohol problem. THE DEFENDANT: Yeah, but ! never addressed it, though. THE COURT: Every time you - - I've got to believe that in the two dozen times you've been in front of the judge for sentencing over the past 20 years that you've said the same thing; I've got a drug and alcohol problem and ! need help to get it under control. (emphasis added).2~ The factors we articulated did not come from any knowledge we gained during our representation of the defendant. Rather, all of the information came from the defendant's own statements made to our presentence investigator and to us in open court, as well as from assumptions we made based upon those facts. 20 Transcript of Proceedings, January 28, 2003, p. 3. 2~ Transcript of Proceedings, January 28, 2003, p. 4. NO. 2002-0361 CRIMINAL In any event, we fashioned a sentence that we deemed to be appropriate based upon all the factors appearing of record. We articulated our reasons for the state sentence before we imposed it. THE COURT: Brian, there's nothing else we can do for you at the county. What's got to be done has got to be done by you. That's clear. We've invested a lot of resources on you. You let yourself down, and you let us down. It's clear that when you are not behind bars you prey upon people and you commit crimes. It was clear to this Court when ! sentenced you almost a year ago that unless - - it was clear to you, too, that unless you beat this addiction that you're going to be a criminal. You've got no other means to support your habit other than stealing. ! don't want you to be in jail for a long time, but that's going to be your call. That's going to be your call.22 After the sentence was imposed, we articulated our reason for the lengthy maximum: Your minimum will be up really relatively soon. If you're serious about recovery, ! hope you can convince the Parole Board of that, and ! hope that they do parole you at that minimum. You've got real good reason to stay clean, because you will be on state parole. If you don't stay clean, you'll have to go back to jail. ! hope that doesn't happen. Good luck to you, Brian.23 We imposed a sentence in the standard range under the sentencing guidelines. The sentence was formulated based upon the facts of record. It was not based upon any information we gained representing the defendant, along with hundreds of other clients, 24 as a public defender more than 1 7 years ago. 22 Transcript of Proceedings, January 28, 2003, p. 5. 23 Transcript of Proceedings, January 28, 2003, pp. 6-7. 24 We note that defendant never asked us to recuse ourselves because of the prior representation. However, even if he had, we would have seen no grounds for recusal under Canon 3 (C) of the Code of Judicial Conduct. NO. 2002-0361 CRIMINAL DATE: Edward E. Guido, J. Jonathan R. Birbeck, Esquire For the Commonwealth William G. Braught, Esquire For the Defendant