HomeMy WebLinkAboutCP-21-CR-0820-2003
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CHARGE: FALSE REPORTS TO LAW
ENFORCEMENT AUTHORITIES
DAVID A. ROTHY
OTN: H6l5639-3
CP-2l-CR-0820-2003
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., July 5, 2006.
In this criminal case Defendant pled guilty to making a false report to law
enforcement authorities. 1 He has now filed an appeal to the Pennsylvania Superior
Court from this court's denial of his pro se petition for reparole?
Notwithstanding an extension of the time for filing a statement of matters
complained of on appeal, granted at Defendant's request,3 no statement of matters
complained of on appeal has been filed as of the date of this opinion.
This opinion in support of the denial of Defendant's petition for reparole is
written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
On July 1, 2003, Defendant pled guilty to making a false report to law
enforcement authorities, a misdemeanor of the second degree.4 He was sentenced
on August 12, 2003, to pay a fine of $100.00 and to undergo a period of
intermediate punishment of 23 months, conditioned upon his being and remaining
on good behavior and complying with all written directions of his probation
officer. 5
1 Order of Court, July 1,2003 (guilty plea order).
2 Defendant's Notice of Appeal, filed May 16,2006.
3 See Order of Court, June 19,2006.
4 Order of Court, July 1,2003 (guilty plea order).
5 Order of Court, August 12, 2003 (sentencing order).
Defendant's probation officer was Bruce Althouse of the Cumberland
County Probation Office, whose experience with Defendant included a prior
courtesy supervision on behalf of Franklin County which ended unsuccessfully
when Defendant absconded.6 In the present case, Defendant absconded within a
few months of his intermediate punishment sentence,7 failed to appear for a
hearing on a petition for revocation of his intermediate punishment sentence,8 was
the subject of a bench warrant due to his failure to appear,9 and was missing for
h 10
more t an a year.
When he was finally apprehended, his intermediate punishment sentence
was revoked and he was sentenced on February 1, 2005, to pay a fine of $100.00
and to undergo a period of imprisonment of not less than two months nor more
than 23 months in the Cumberland County Prison, with credit from the date of his
arrest on the bench warrant, January 6, 2005.11 After serving two months, on
March 6, 2005, he was paroled.12
Within a month or two of his release on parole, Defendant again
absconded,13 failed to appear for a hearing on a petition for revocation of his
parole,14 was the subject of a bench warrant arising out of his nonappearance, 15
6 NT. 10, 13-14 (hearing on Defendant's Petition for Reparole, April 17, 2006 (hereinafter NT.
~.
7 Petition for Revocation ofIntermediate Punishment, filed December 17,2003; NT. 11.
8 Order of Court, December 30, 2003 (bench warrant).
9 Order of Court, December 30, 2003 (bench warrant).
10 See Petition for Revocation of Intermediate Punishment, filed December 17, 2003; Order of
Court, February 1,2005; NT. 9.
11 Order of Court, February 1,2005 (revocation of intermediate punishment).
12 Order of Court, March 4, 2005 (pre-parole investigation and order).
13 Petition for Revocation of Parole, filed May 19,2005; NT. 11.
14 Order of Court, May 31, 2005 (bench warrant).
15 Order of Court, May 31, 2005 (bench warrant).
2
and was missing for about three months.16 When he was finally apprehended, his
parole was revoked on September 6, 2005, his street time was withdrawn, and he
was recommitted to the Cumberland County Prison to serve the unexpired balance
of his term, with additional credit from the date of his arrest on the bench warrant,
August 17, 2005.17
On March 3, 2006, Defendant filed a pro se petition for reparole.18 On
April 17, 2006, the court held a hearing on the petition. At the hearing, Defendant
advised that
. . . getting arrested on my second parole violation was
probably the best thing that could have happened to me. At the
time I was addicted to cocaine and marijuana. And I was not
making any good decisions at all. . . .19
He attributed both of his elopements in the above-captioned case to fear of
"a hot urine test,,,20 and professed to have "gotten help" during his most recent
imprisonment.21 He conceded, on cross-examination, that any defendant's failure
to report would make utilization of drug and alcohol programs and supervision on
the part of a probation or parole officer difficult.22
Defendant's parole officer, whose experience in the field exceeded 16
years23 and whose caseload at any given time included responsibility for 70 to 80
probationers or parolees,24 testified on behalf of the Commonwealth in opposition
to Defendant's petition for reparole. His testimony included the following:
16 See Petition for Revocation of Parole, filed May 19,2005; Order of Court, September 6,2005;
NT. 9.
17 Order of Court, September 6,2005 (revocation of parole).
18 Petition for Reparole, filed March 3, 2006.
19 NT. 5.
20 NT. 5.
21 NT.5, 17.
22 NT. 19.
23 NT. 8.
24 NT. 11.
3
Q Do you have an opinion as to whether that is-he is
appropriate for parole at this time?
A In my opinion, based on my general years of
service, and specifically in dealing with Mr. Rothy, is that I
think he would be a bad risk for parole based on his history of
absconding. When he absconds, we're talking about over a
year missing. Two times that I've dealt with him directly on
this particular case-I believe 14 months he was missing the
first time, and he was located when a residence was subject to a
search warrant in Perry County. He didn't turn himself in that
time. The second time he was missing a number of months
before I located him at a residence in Franklin County.
Q Okay. So on both occasions that he failed to report
to you, he had to be arrested?
A Yes, sir.
Q Okay. He did not turn himself in?
A N . 25
0, SIr.
* * * *
. . . He has a current balance [for fines and costs] at
this particular docket number, and as I see it he's paid, by my
calculations, $108.45 on that docket, and it appears that every
payment received was, I believe, from work release, Mr. Rothy
being incarcerated out on work release earning money as a
work release inmate, and it being sent by the prison. No
payments were received while he was out on parole or on
Intermediate Punishment. 26
* * * *
. . . Mr. Rothy has shown time and again that he
can't follow the simplest rules of parole. That is letting me
know where you're living and keeping in touch or making
yourself available for field supervision. He just hasn't done
that, and he's shown that within a month or two of any release
that-you know, within two months of a parole or sentence of
J.P. it's catch me if you can.27
25 NT. 9.
26 NT. 10.
27 NT. 11.
4
At the conclusion of the hearing, the court took the matter of Defendant's
reparole request under advisement. 28 On April 18, 2006, the order was entered
denying Defendant's petition for reparole, from which Defendant has filed an
appeal to the Pennsylvania Superior Court.
DISCUSSION
"It is well established that a parole is a matter of grace and mercy, not a
matter of a prisoner's fundamental right." Presley v. Pennsylvania Board of
Probation & Parole, 748 A.2d 791, 794 (Pa. Commw. Ct. 2000). Disposition of a
petition for parole (or reparole) with respect to a county sentence is a matter within
the sound discretion of the court of common pleas. Commonwealth v. Romolini,
384 Pa. Super. 117, 125, 557 A.2d 1073, 1077 (1989).
In the present case, the court found itself in agreement with Defendant's
parole officer that Defendant had proven himself to be a poor risk for reparole, and
did not find persuasive Defendant's position to the contrary. Based upon
Defendant's failure on three previous occasions to abide by the most basic
conditions of intermediate punishment or parole, the court entered the order which
is the subject of Defendant's appeal, denying his petition for reparole at this time.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Daniel 1. Sodus, Esq.
Senior Assistant District Attorney
28 NT. 19-20; Order of Court, April 17, 2006.
5
David A. Rothy
Cumberland County Prison
Defendant, pro Se
6