Judge cases spilling into adult court

By Terrie Morgan-Besecker tmorgan@timesleader.comLaw & Order Reporter

WILKES-BARRE – Fallout from the corruption scandal involving Judge ’s handling of juvenile court cases has hit the adult court system.

Attorneys for two Luzerne County men on Wednesday said they have filed or intend to file court motions that challenge the use of their clients’ juvenile court records in calculating sentences for crimes they committed as adults. The challenges are based on allegations that the juvenile proceedings in question were tainted.

The development opens up a whole new area of inquiry that could pose an administrative nightmare for the county court system, which already faces the possibility of having to retry hundreds of cases in which juveniles are alleged to have been denied a fair hearing.

The focus is on adult defendants whose sentences for crimes were increased because they had committed offenses as juveniles.

Under state sentencing guidelines, an offense an adult committed as a juvenile can be considered in sentencing in adult court under certain conditions: the offender was age 14 or older when the crime was committed and the offense was graded as a felony or one of several specified serious misdemeanors.

In those instances, the juvenile record can be considered in determining an adult offender’s “prior record score,” a key element in sentencing guidelines judges use in fashioning a sentence.

Leo Latella, a federal public defender, on Wednesday filed a motion in federal court seeking to reduce the sentence of Justin Plesh of Hazleton, who pleaded guilty in 2008 to a drug charge.

Latella argues Plesh’s adjudication of delinquency – juvenile court’s equivalent of a conviction – in 2003 on a drug possession charge was improperly obtained and therefore should not have been utilized to calculate his sentence for the drug offense he committed as an adult.

Attorney Joseph Cosgrove of Kingston said he also plans to file a challenge to the sentence of Steven Wylie of Wanamie, who pleaded guilty in Luzerne County court in 2004 to aggravated assault. That challenge will raise questions regarding the propriety of several juvenile court convictions that were utilized in calculating the aggravated assault sentence.

The attorneys were prompted to act based on the guilty pleas Ciavarella and Judge Michael Conahan entered last week to charges they accepted more than $2.6 million in kickbacks from the builder and former owner of two juvenile detention centers where Luzerne County youth were incarcerated.

Federal prosecutors have alleged, in part, that Ciavarella and Conahan benefited financially by sending juveniles to the centers, even when probation officials recommended against it.

The criminal charges prompted the state Supreme Court to appoint Senior Judge Arthur Grim from Berks County to review all juvenile cases handled by Ciavarella from 2003 to 2008 to determine if juveniles’ rights were violated.

The court also directed Grim to review all cases in which juveniles appeared before Ciavarella without an attorney. He will then recommend whether to vacate the adjudications of delinquency, expunge the records of the offenders or order a new delinquency hearing.

In Wylie’s case, the lack of counsel at the juvenile hearing is a key issue.

In his adult court case, Wylie pleaded guilty in 2004 in Luzerne County Court to hitting another man in the head with a baseball bat and was sentenced to seven to 14 years in prison.

In a letter to The Times Leader, Wylie said his sentence was increased because the court considered five prior juvenile adjudications when determining his prior record score. Wylie said that in four of the five appearances he made before Ciavarella he was not represented by an attorney.

“These prior adjudications obviously raise serious questions as to the propriety of the sentences imposed in this and presumably other cases,” Cosgrove said. “This is not to say that the sentence the judge, who relied upon what he presumably thought was a proper adjudication, was wrong. It may mean that the sentence was tainted and the judge would have an opportunity to now review that and correct it.”

In Plesh’s case, Latella’s motion says the sentencing range for Plesh, who pleaded guilty in 2008 to conspiracy to distribute marijuana, was increased by 13 months based on his 2003 juvenile court record for possession of a small amount of marijuana when he was age 16.

Latella argues Plesh’s juvenile record should not be recognized by the federal court in his sentencing on the adult drug charges due to the serious questions that have been raised by Ciavarella’s conduct while presiding over the juvenile court.

“It is respectfully requested that this honorable court issue a ruling that unequivocally states that none of the actions of Mark A. Ciavarella while he was masquerading as an honest juvenile judge be given any recognition, force or effect and will be treated by this legitimate court as a complete nullity,” Latella wrote.

Luzerne County District Attorney Jacqueline Musto Carroll said she has not yet received any notice of a defendant challenging a sentence based on allegations of a tainted juvenile court proceeding.

“Obviously, this is a novel issue. I will certainly look into it, but I think it’s jumping the gun because the judge was just appointed to review juvenile cases and has not made a decision on what remedies might be available to juveniles,” she said.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.