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HomeMy WebLinkAboutCP-21-CR-0000152-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-3102-2009 : : CHARGE: 1. SIMPLE ASSAULT : : AFFIANT: OFF. STEVEN COVERDALE V. : : : CP-21-CR-0152-2010 : : CHARGE: 2. DUI, GENERAL IMPAIRMENT : WITH REFUSAL DONALD ROSS SMILEY : OTN: L520023-0 : OTN: L522175-3 : AFFIANT: CPL. WILLIAM MOWREY IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Ebert, J., January 10, 2011 – FACTS By criminal complaint dated October 30, 2009, the Defendant was charged with Simple Assault (M-2), Harassment (Summary), Terroristic Threats (M-1), and False Imprisonment (M-2). The Defendant waived these charges into Court on November 23, 2009. By separate complaint filed on November 16, 2009, the Defendant was charged rd with Driving Under the Influence, General Impairment (3 or Subsequent Offense) (M- rd 2), Driving Under the Influence, General Impairment with Refusal (3 or Subsequent Offense) (M-1) and Maximum Speed Limits (Summary). After preliminary hearing, these charges were bound over to Court on January 12, 2010. Separate criminal informations were filed in both cases. On May 13, 2010, pursuant to a plea agreement with the Commonwealth, the Defendant pled guilty to two charges in full satisfaction of all the other charges pending against him. At the information filed at CP-21-CR-0152-2010 the Defendant pled guilty rd to Count 2: Driving Under the Influence, General Impairment with Refusal (3 or Subsequent Offense) (M-2). At the information filed at CP-21-CR-3102-2009, the 1 Defendant pled guilty to Count 1: Simple Assault (M-2). At the time of the pleas, the District Attorney indicated to the Court his agreement that the Defendant be sentenced on the Driving Under the Influence, General Impairment with Refusal charge to the county Intermediate Punishment Program. Prior to the plea the Defendant was advised that the Driving Under the Influence charge was a third offense which carried a minimum fine of $2,500.00 and a mandatory minimum 2 prison sentence of 1 year up to 5 years. On July 20, 2010, the Defendant appeared in court for sentencing. He was asked on the record if it was his desire to enter the Cumberland County Intermediate Punishment Program and if he agreed to abide by the conditions of the program. The Defendant answered yes and accordingly, the Court sentenced him to 60 months Intermediate Punishment on the charge of Driving Under the Influence, General Impairment with Refusal. On the Simple Assault charge, the Defendant was sentenced to pay the costs of prosecution, pay $5,123.20 restitution to the Pennsylvania Commission on Crime and Delinquency – Victim’s Compensation Assistance Program, 1 Guilty plea hearing, 5/13/2010, p. 6. 2 Id. at p. 2. 2 pay $792.50 restitution to the victim, Donna Humer, and undergo 12 months of 3 supervised probation concurrent with his Intermediate Punishment sentence. As part of the Intermediate Punishment sentence, the Defendant received Restrictive Intermediate Punishment for 365 days. A minimum of 120 days of that 4 period was to be served in the Cumberland County Prison Work Release Program. The Defendant was specifically advised in the sentencing order that “you shall comply with all rules of the Work Release Program.” Defendant was ordered to report to the Cumberland County Prison to begin his Restrictive Intermediate Punishment on July 30, 2010, at 9:00 a.m. After reporting to the prison, the Defendant read and signed the 5 Cumberland County Prison Work Release Agreement on August 2, 2010. Conditions of the work release included paragraph 2 which reads as follows: 2. If I quit or am discharged from my designated place of employment, I understand disciplinary action and removal from the Work Release Program may result. I understand that if I am removed as a result of a Disciplinary Action I may not be guaranteed another chance at status because of the limited Work Release/trustee beds. The Defendant signed the agreement and acknowledged that he had read, understood and would obey all work release rules. Specifically, the Defendant was 6 advised that “WORK RELEASE IS A PRIVILEGE NOT A RIGHT.” The Cumberland County Work Release manager secured employment for the Defendant through an employment agency which placed him at Pittsburgh Plate Glass Company (PPG). In Cumberland County this is one of the best employers and pays the highest wages. 3 Order of Court dated 7/20/2010, Intermediate Punishment Entrance Hearing, 7/20/2010, p. 2-3. (hereinafter IP Entrance Hrg. p. ). 4 Order of Court dated 7/20/2010; Comm. Exh. #1. 5 Comm. Exh. #2, Revocation Hearing, 10/12/2010, p. 9. 6 Id. 3 78 Defendant was being paid ten dollars an hour. In less than a month (17 days) the Defendant was terminated from his employment by PPG because of his “uncooperative 9 attitude.” As a result of the termination, pursuant to prison policy, the Defendant was given a disciplinary write-up and a disciplinary hearing was held which resulted in the Defendant being removed from the Work Release Program. Having failed to comply with the “rules of the Work Release Program” as ordered by the Court, and having violated the work release agreement he signed with the prison, the Defendant’s probation officer filed a petition to revoke the Defendant’s Intermediate Punishment/Probation. On October 5, 2010, in open court the Defendant requested a full hearing on the Petition for Revocation of Intermediate Punishment/Probation. On October 12, 2010, a full hearing was held. Kerry Houser, Supervisor of the Cumberland County Intermediate Punishment Program, testified that the Defendant had been very “difficult” and that he did not want to proceed with his drug and alcohol evaluation and did not want to proceed with 10 intermediate punishment. Fred Culbertson, the Work Release Manager at the Cumberland County Prison testified that, two days before the Defendant was terminated from PPG, he was called into work and was “very bitter, very combative, and 11 complaining constantly...” Culbertson testified that the Defendant was terminated from PPG because of his attitude. Culbertson specifically stated that the Defendant’s 7 Revocation Hearing 10/12/2010, p. 10, 22. 8 Revocation Hearing, 10/12/2010, p. 20. 9 Revocation Hearing, 10/12/2010, p. 14. 10 Revocation Hearing, 10/12/2010, p. 4-5. 11 Revocation Hearing, 10/12/2010, p. 10-11. 4 discharge from his employment was a violation of the work release conditions the 12 Defendant had signed. The Defendant testified on his own behalf. He basically stated that he did not feel he was being treated fairly because of what he described as constant changes in his schedule and that he had been wrongfully terminated because of the actions of others. Additionally the Defendant implied that the Cumberland County Prison improperly denied his repeated requests to attend Harrisburg Area Community College. This Court did not find the Defendant’s testimony credible. In observing the Defendant, he presented himself as a generally dissatisfied person who verbalized grand plans for himself but never took on any personal responsibility to make these things happen. For example, the Defendant blames the Cumberland County Prison for not allowing him to attend the Harrisburg Area Community College. The Defendant had over two months between the entry of his plea and his Intermediate Punishment sentencing. He was unemployed during this time period and therefore had ample free time, but he took no 13 action to complete his enrollment in the Harrisburg Area Community College. After hearing, this Court found that the Commonwealth had sustained its burden of proving by a preponderance of the evidence that the Defendant had violated the conditions of his Intermediate Punishment Program. Accordingly, the Court revoked him from Intermediate Punishment. After review of the pre-sentence investigation, the Defendant was then resentenced. On the Driving Under the Influence with Refusal rd Charge, (3 offense), the Defendant was sentenced to the minimum mandatory sentence of not less than 1 year nor more than 3 years in a state correctional institute. 12 Revocation Hearing, 10/12/2010, p. 12, 19. 13 Revocation Hearing, 10/12/2010, p. 23. 5 On the Simple Assault charge, the Defendant was sentenced to not less than 3 months nor more than 12 months. This was a standard range sentence and was run consecutive to the Driving Under the Influence charge. Additionally, the Defendant was ordered to pay restitution to the Victim’s Compensation Assistance Program of the Pennsylvania Commission on Crime and Delinquency in the amount of $5,123.20 and to pay the victim, Donna Humer, restitution in the amount of $792.50. On October 20, 2010, the Defendant filed a motion for reconsideration of this sentence which was denied by Order of Court dated October 22, 2010. The Defendant then filed the Notice of Appeal to the Superior Court on November 16, 2010. DISCUSSION In his Concise Statement of Errors Complained of on Appeal the Defendant stated the following: The Sentencing Court erred when revoking County Intermediate Punishment Sentence when the Court found that sufficient cause existed for revocation based on the Defendant losing employment during work release portion of county Intermediate Punishment. In essence, the Defendant challenges this Court’s finding that sufficient evidence was presented by the Commonwealth to justify his revocation from the County Intermediate Punishment Program. The County Intermediate Punishment Program is governed by the provisions of 42 Pa.C.S.A. §9801 et seq. Specifically, a Defendant may only be sentenced to County Intermediate Punishment for a first, second or third offense of 75 Pa.C.S.A. §3804 (relating to the penalties for driving after imbibing alcohol or utilizing drugs), 42 Pa.C.S.A. §9804(b)(5). 6 The procedure for removal of an individual from the Intermediate Punishment Program is governed by Pa.R.Crim.P. Rule 708, Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition. While this Court is unaware of any cases that specifically deal with revocation from intermediate punishment, the fact that Rule 708 addresses violations of probation, intermediate punishment and parole leads this Court to conclude that the burden of proof for revocation from any of these three is the same. Accordingly, “In a revocation hearing the standard of proof is a preponderance of the evidence…or in other words such proof as leads the trier of fact to find that the existence of a contested fact is more probable than its nonexistence.” Commonwealth v. Del Conte, 419 A.2d 780, 781, (Pa.Super. 1980). In this case, it is clear that the Defendant was discharged from his employment at PPG. After being discharged from PPG, he was subject to disciplinary action at the prison and he was removed from the work release program. Having been removed from the work release program, he was clearly in violation of his intermediate punishment sentence which stated that he had to comply with all the rules of the work release program. There can be little debate about the fact that of all the rules of the work release program, the most fundamental rule is that the Defendant must “work.” As Probation Officer Houser testified, dealing with the Defendant was “difficult,” Defendant was not happy with his plea, stated his attorney was wrong, and that he did not really want to proceed with intermediate punishment. The fact is that the Cumberland County Prison Work Release Program got the Defendant a good job, at a good company, which paid ten dollars an hour. The Defendant, because of his attitude, lost that job in less than 17 days. As Work Release Manager Culbertson stated, the 7 discharge from his employment was a violation of the work release conditions that the Defendant had signed. Just as Ms. Houser found the Defendant difficult to work with, this Court finds that the Defendant’s “uncooperative attitude” led to his discharge from PPG. The Defendant’s explanation for his discharge is simply not credible. This Defendant consistently displays a “poor me… everything that happens is someone else’s fault” attitude. Defendant’s Intermediate Punishment Program was designed to help him rehabilitate himself, gain viable employment, and avoid the mandatory one year prison sentence he was facing for this third DUI conviction. Unfortunately for the Defendant, he never accepted the fundamental premise that was clearly printed in his work release agreement … WORK RELEASE IS A PRIVILEGE, NOT A RIGHT. CONCLUSION Any fair reading of the transcript of the revocation hearing in this case clearly establishes that there was sufficient evidence to revoke the Defendant from Intermediate Punishment based on his failure to comply with all the rules of the Cumberland County Prison Work Release Program. By the Court, M. L. Ebert, Jr., J. District Attorney’s Office Brian Williams, Esquire Attorney for Defendant bas 8