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HomeMy WebLinkAboutCP-21-CR-0743-2003 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : RODNEY K. HOUGH : CP-21-CR-0743-2003 IN RE: PETITION FOR POST-CONVICTION RELIEF PROPOSED REASONS FOR DISMISSAL OF PETITION Bayley, J. February 28, 2006 On , petitioner, Rodney K. Hough, filed a counseled petition et seq pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. Section 9541, . He seeks September 15, 2003 to withdraw a guilty plea he entered on . Pa.R.Crim.P. 907(1), provides: the judge shall promptly review the petition, any answer by the attorney for the Commonwealth, and other matters of record relating to the defendant’s claim(s). If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the petition and shall state in the notice the reasons for the dismissal. The defendant may respond to the proposed dismissal within 20 days of the date of the notice. The judge thereafter shall order the petition dismissed, grant leave to file an amended petition, or direct that the proceedings continue. (Emphasis added.) Petitioner was charged in an information with five counts of obtaining drugs by fraud, each a felony under 35 P.S. Section 780-113(a)(12), and five counts of unlawful procurement of prescription drugs, each a misdemeanor under 63 Pa.C.S. Section 390- 8(13). The following plea colloquy and sentencing occurred on September 15, 2003: CP-21-CR-0743-2003 MR. FREED: May it please the Court, this is case number 139 on the trial list, Commonwealth versus Rodney K. Hough. Mr. Hough is in court represented by his counsel, Gregory Abeln, Esquire, for the purpose of entering guilty pleas pursuant to an agreement that’s been reached between the Commonwealth and the defendant. Obviously pursuant to – contingent on your approval. The charges in the case at Count 1 are five counts of obtaining drugs by fraud, which is an ungraded felony, and Count 2, unlawful procurement of a prescription drug. The plea agreement would be, Your Honor, that Mr. Hough will plead guilty to one count of unlawful procurement of a prescription drug, an ungraded misdemeanor, with a maximum possible prison term of one year and a maximum possible fine of $5,000.00, and on the substituted count of theft by deception, that’s a felony of the third degree, maximum penalty seven years, maximum possible fine $15,000.00. The plea to those two counts would be in full satisfaction of all other charges at this term and number. In addition, with regard to the felony theft by deception charge, the defendant specifically waives filing of an information for that charge. In return for the plea agreement, the Commonwealth has agreed to a sentence of three to twenty-three months incarceration in Cumberland County Prison with work release being authorized. This is a standard range sentence. The defendant will also agree to make restitution to an organization known as World Blindness Outreach, Inc., in the amount of $20,000.00. THE COURT: World Blindness Outreach, Inc.? MR. FREED: That’s correct. I have the address, and I’ll put that on the record. THE COURT: Facts. nd MR. FREED: The facts, Your Honor, are that between the 2 of th September 1999, and Friday, December 7, 2001, the defendant in his capacity as a physician obtained certain prescription drugs for his own use by giving prescriptions to certain patients of his and having the patients fill the prescriptions. He would give the patients the money to pay for the prescriptions. The patients would go get the prescriptions filled, bring the prescriptions back to Dr. Hough. It was done really as a favor for him. But that’s an unlawful way for a physician to procure drugs, and they were Hydrocodone which is a prescription drug. THE COURT: The indications are he’s using it for his own use? -2- CP-21-CR-0743-2003 MR. FREED: That’s correct, that is the unlawful procurement charge. The theft by deception charge is made out by the actions of the defendant wherein he represented to a pharmaceutical manufacturer that he needed these drugs to use in connection with his work with World Blindness Outreach. That’s the charity that was mentioned previously. He solicited donations of the controlled substances from the manufacturer. I think the drug was – the brand name is Lortab. It was UCB Pharma, I believe is the drug company. He solicited donations and received a substantial amount of the drugs which was then converted to his own use, never made its way to World Blindness Outreach. So the victim of the theft, the deception he used was that he was working on behalf of World Blindness Outreach and was going to use these drugs in some missions, which he had done on behalf of World Blindness Outreach previously but was not doing at the time that this action was taking place. He obtained the drugs and then converted them to his use. However, World Blindness Outreach never got the benefit of the drugs, and that’s the restitution that should be ordered to them. THE COURT: And there is an agreement as to sentence? MR. ABELN: Yes. THE COURT: Not less than three months nor more than twenty- three months? MR. ABELN: That’s correct, Your Honor. THE COURT: When is that going to commence? MR. ABELN: We would ask that it start on Wednesday at 8:00 a.m. th THE COURT: The 17? MR. ABELN: Correct. THE COURT: And you waive a presentence investigation? MR. ABELN: We do, Your Honor. THE COURT: Sir, did you sign a rights form? THE DEFENDANT: Yes. THE COURT: Do you feel you understand those rights? THE DEFENDANT: Yes, sir. THE COURT: Any questions regarding those rights? THE DEFENDANT: No, sir. THE COURT: If you did what the District Attorney said you did, you would be guilty of the misdemeanor of unlawful procurement of prescription drugs which carries a maximum penalty of one year imprisonment and a fine, and you would be guilty of theft by deception, a -3- CP-21-CR-0743-2003 felony of the third degree. That carries a maximum penalty of seven years imprisonment and a fine. It has been indicated that you and your counsel have reached an agreement regarding sentencing of not less than three months nor more than twenty-three months in the Cumberland County Prison. If you enter a plea, I will tell you that the sentencing arrangement is acceptable to me, and I will abide by it if you enter the plea. THE DEFENDANT: Yes, Your Honor. THE COURT: Do you admit that you committed the offenses? THE DEFENDANT: Yes, sir. THE COURT: I’ll accept the pleas. Enter this order. Defendant having appeared at 03-0743 Criminal Term and tendered a plea of guilty to one count of the misdemeanor unlawful procurement of a prescription drug and to one count of theft by deception, a felony of the third degree, those pleas being entered in full satisfaction of all charges at this term and number, the plea is accepted and recorded. Counsel, does your client waive a presentence investigation? MR. ABELN: We do, Your Honor. THE COURT: Anything you wish to say before sentencing? MR. ABELN: Simply that the first count of the unlawful procurement was based upon the fact that my client was in need of pain medication that he could not supply himself legally. He became an addict. He has now since undergone treatment. He’s successfully completed a 90 day program inpatient. THE COURT: Good. MR. ABELN: And he has been lecturing voluntarily in the community as to the disease of addiction and how it can affect somebody in Dr. Hough’s capacity much less a drug dealer on the street. As to the other count of theft by deception Dr. Hough for many years had been a missionary in South America, and he had made and established a reputation to be trusted. He had been given drugs to take down to these other countries and deal with patients down there. The drugs that he got were pretty much either expired drugs or soon to be expired drugs. The total amount would have been around $37,000.00. We figured it out as a $20,000.00 compromise that he is willing to make a contribution to the World Blindness Committee. This is a tragic case for everybody. There’s no winners here, but he is doing as best as he can to make everything right. His patients and his colleagues have stood behind him and are willing to assist him if you are willing to grant him work release during the times that he can’t respond on emergency cases. A large population of his clientele are -4- CP-21-CR-0743-2003 elderly patients, and we believe that the three months he’ll be able to survive. THE COURT: My understanding is that you believe and the District Attorney believes that this will not affect his ability to act as a licensed physician and care for patients? MR. ABELN: The way I understand it, the situation will still be reviewed by the Board, but if there is a way for them to agree to not suspend his license, this is it. THE COURT: So it won’t guarantee it, but it is a possibility that he will still be able to continue to practice? MR. ABELN: Not only a possibility but a good possibility. THE COURT: Is that your understanding too? MR. FREED: Yes, that’s correct, Your Honor. THE COURT: Anything you wish to say before sentencing, sir? THE DEFENDANT: I’m very sorry this happened to me. On the THE COURT: Your attorney set forth what I need to know. charge of theft by deception, sentence is that you pay the costs of prosecution, make restitution in the amount of $20,000.00 to World Blindness Outreach, Inc., and undergo imprisonment in the Cumberland County Prison for a term of not less than three months nor more than twenty-three months. Work release is authorized. You are to report to the Cumberland County Prison, without further appearance or order of court, this Wednesday, September 17, 2003, at 8:00 a.m. The reason for the sentence is that, number one, it is a standard range guideline sentence, and number two, it was an agreed sentence which was acceptable by the Court, and I feel that under all the circumstances that justice has been served. MR. ABELN: Your Honor, could we ask that he be paroled without further order of court. Ninety days from today’s date would be December th 16. THE COURT: I will have somebody slip that up to me. MR. ABELN: Thank you. MR. FREED: Judge, if I might add on the record, the address of World Blindness Outreach is 1510 Cornwall Road, Lebanon, Pennsylvania, 17042. In addition, Your Honor, there was the plea at the unlawful procurement and then a plea for theft by deception. Is it costs of prosecution on the unlawful procurement and the prison sentence attached to the theft? THE COURT: I’m sorry. I should have made that clear. The -5- CP-21-CR-0743-2003 On the charge of unlawful sentence I imposed was on the theft charge. procurement of prescription drugs, sentence is that you pay the costs of prosecution. You know, I am going to change that. I don’t have a presentence and a parole officer immediately, so I will put that in my order. Add to the end of the order. As long as defendant is in compliance with all rules and regulations of the Cumberland County Prison, he shall be released at the expiration of his minimum term on parole with supervision for the first six remaining months and without supervision for the remaining months on condition that he be and remain on good behavior and comply with all restrictions of his probation officer. MR. ABELN: Thank you, Your Honor. (Emphasis added.) Petitioner was paroled after he served his minimum sentence of imprisonment. August 17, 2005 His maximum sentence expired on . He avers in his post-conviction petition: 5. As a result of his guilty plea, the Pennsylvania State Board of Medicine ordered Dr. Hough to pay a civil penalty of $5,000; placed a public reprimand on his board record; suspended his license for 10 years but immediately stayed the suspension in favor of a 10-year period of probation. 8. After his release from prison, Dr. Hough has continued to practice medicine. 9. In early January 2006, more than 2 years following his guilty plea and sentencing, Dr. Hough received notice from the United States Department of Health and Human Services that as a result of his guilty plea, he was no longer permitted to participate in any Federal health care programs, including Medicare and Medicaid. This will have the effect of preventing him from treating many of his patients, particularly those who are elderly. In addition, as a result of the federal action, Dr. Hough was notified by Highmark Blue Shield that, effective January 19, 2006 he was terminated from participation in its PremierBlue Shield Network, which means that he cannot treat any of his patients under that insurance plan. 10. Dr. Hough anticipates the closing of his medical practice on or about March 1, 2006. 11. William I. Arbuckle, III, Esquire, of State College, has timely appealed the federal exclusion notice on several grounds, including the -6- CP-21-CR-0743-2003 fact that Dr. Hough’s guilty plea was to theft by deception and did not involve a controlled substance as a matter of law and that the mandatory felony provisions of the act under which Dr. Hough was excluded from participation in Federal health care programs do not encompass the crime of theft by deception. 12. For the following reasons, Dr. Hough respectfully asks that his judgment of sentence be vacated and that the case be set for trial. 13. At all relevant times, Dr. Hough was under the understanding and was expressly advised by his criminal defense attorney, Gregory B. Abeln, Esquire, that entering into the aforesaid plea agreement with the Commonwealth would not adversely impact his ability to continue practicing medicine in Pennsylvania. Attorney Abeln and then First Assistant District Attorney (now District Attorney) David J. Freed stated the following on the record. THE COURT: My understanding is that you believe and the District Attorney believes that this will not affect his ability to act as a licensed physician and care for patients? MR. ABELN: The way I understand it, the situation will still be reviewed by the Board, but if there is a way for them to agree to not suspend his license, this is it. THE COURT: So it won’t guarantee it, but it is a possibility that he will still be able to continue to practice? MR. ABELN: Not only a possibility but a good possibility. THE COURT: Is that your understanding, too? MR. FREED: Yes, that’s correct, Your Honor. See N.T. 8, September 15, 2003, attached. 14. Dr. Hough was specifically advised by counsel that the guilty plea to this type of felony (theft by deception) would not implicate his ability to practice medicine and, with that assurance and knowledge, entered the guilty plea. 15. Indeed, the Pennsylvania Board of Medicine effectively placed Dr. Hough on probation only and he continued to practice medicine, which confirmed the mutual understanding of Dr. Hough, his attorney, and the prosecutor at the time the guilty plea was entered into. However, contrary to the mutual understanding of Dr. 16. -7- CP-21-CR-0743-2003 Hough, his attorney and the prosecutor – and due to no fault of any of them – he is no longer able to practice medicine as a result of the recent Federal action. The recent Federal action constitutes a manifest injustice 17. and renders Dr. Hough’s guilty plea involuntary, unknowing and unintelligent. In the interests of justice and fundamental fairness, Dr. 18. Hough should be afforded the opportunity to withdraw his guilty plea and reach a different resolution of the charges against him with the Commonwealth. (Emphasis added.) The Post-Conviction Relief Act provides at Section 9545(b): Time for filing a petition— (1) Any petition under this subchapter, including a second or shall be filed within one year of the date the subsequent petition, judgment becomes final , unless the petition alleges and the petitioner proves that: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States; the facts upon which the claim is predicated were (ii) unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or (iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by the court to apply retroactively. (2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented. (Emphasis added.) Section 9543(a)(2) provides: That the conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or -8- CP-21-CR-0743-2003 innocence could have taken place. Ineffective assistance of counsel which, in the (ii) circumstances of the particular case, so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place. A plea of guilty unlawfully induced (iii) where the circumstances make it likely that the inducement caused the and the petitioner is innocent petitioner to plead guilty . (iv) The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court. (v) Deleted. (vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced. (vii) The imposition of a sentence greater than the lawful maximum. (viii) A proceeding in a tribunal without jurisdiction. (Emphasis added.) Section 9543 provides: Eligibility for relief (a) General rule.— To be eligible for relief under this subchapter, petitioner must plead the and prove by a preponderance of the evidence all of the following: (1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted: (i) currently serving a sentence of imprisonment, probation or parole for the crime ; (ii) awaiting execution of a sentence of death for the crime; or (iii) serving a sentence which must expire before the person may commence serving the disputed sentence. (Emphasis added.) Notwithstanding that petitioner, (1) has not under Section 9545(b)(1)(i) filed this post-conviction petition within one year of his date the judgment of sentence became -9- CP-21-CR-0743-2003 final, (2) has not pled any grounds for relief under Section 9543(a)(2), and (3) has raised as his only claim a matter collateral to his conviction, he is otherwise ineligible for relief under Section 9543(a)(1)(i) because he is no longer serving a sentence of imprisonment and has completed his period of parole under the sentence imposed on September 15, 2003. A petitioner is ineligible for relief under the Post-Conviction Relief Act once the sentence for the challenged conviction is completed. Commonwealth v. Alhborn, Commonwealth v. Matin, 699 A.2d 718 (Pa. 1997); 832 A.2d 1141 (Pa. Super. 2003). This court is without legal authority to grant petitioner the relief he requests. (Date) Edgar B. Bayley, J. David Freed, Esquire District Attorney William C. Costopoulos, Esquire For Petitioner :sal -10-