Superior Court questions whether Common Pleas judge is over-punishing sex offenders
January 15, 2017 12:00 AM
Allegheny County Judge Donna Jo McDaniel.
By Paula Reed Ward / Pittsburgh Post-Gazette
The Pennsylvania Superior Court questioned whether a veteran Allegheny County judge is meting out overly harsh sentences in sex assault cases in a strongly worded opinion ordering that a defendant be resentenced.
In the 36-page opinion last week, the appellate panel suggested that Common Pleas Judge Donna Jo McDaniel, who presides over sex offender court, has shown a pattern in those types of cases.
“We note our awareness of a possible emerging pattern in this particular sentencing court of routinely sentencing sex offenders in the aggravated sentencing range and/or outside the guidelines,” wrote Superior Court President Judge Emeritus John T. Bender.
The opinion then cited in a footnote another of Judge McDaniel’s cases, that against Gabino Bernal, who last month also was awarded a second new sentencing hearing on charges of unlawful contact with a minor, indecent assault of a person less than 13 and corruption of minors. The Superior Court panels in both cases included the same members, Judge Bender, Judge Lillian Harris Ransom and Senior Judge John L. Musmanno.
Judge McDaniel did not respond to a request for comment.
In Bernal’s appellate brief, filed by the Allegheny County Public Defender’s office, his attorneys listed 14 cases currently on appeal — 10 for sexual offenses — in which Judge McDaniel sentenced the defendants to serve the maximum possible penalty and ran multiple sentences consecutively.
“There will always be cases where circumstances call for, if not practically compel, sentences which exceed the standard guideline recommendations,” Judge Bender wrote, noting that trial judges have wide discretion. “However, we expect that sentencing courts understand that a standard range sentence is the norm and, consequently, that sentences which exceed (or fall below) the standard recommendation should be relatively infrequent by comparison.
“The appearance of bias, and doubt regarding a court’s commitment to individualized sentencing, both rationally emerge when such a pattern of routine deviation from sentencing norms is demonstrated by adequate evidence.”
In the most recent case, captioned as the Commonwealth vs. A.S., the defendant, now 21, pleaded guilty on Feb. 17, 2015, in two separate cases to four counts of indecent assault of a child less than 13, two counts of unlawful contact with a minor, two counts of endangering the welfare of children, two counts of corruption of minors, sexual assault, indecent assault and incest.
The charges involved his siblings, which is why he is identified in the opinion only by his initials.
At sentencing on June 24, 2015, Judge McDaniel ordered A.S. to serve 7½ to 15 years in prison.
However, under the sentencing guidelines in the case, the standard range on the first case would have been 3 to 12 months incarceration -— she gave him 30 to 60 months, which was outside of the aggravated sentencing range.
In the second case, the standard recommended range was 36 to 54 months, and Judge McDaniel gave A.S. 60 to 120 months, which was in the aggravated range.
A.S. challenged the sentence, arguing that Judge McDaniel relied on information not present in the case to support the punishment she meted out.
Among the statements made by Judge McDaniel at sentencing that the defense -— and subsequently the Superior Court -— said were untrue were:
• That the defendant had prior sexual contact with the victims, as well as with another minor, several years earlier.
The Superior Court said that the record in the case does not substantiate that claim, and that the pre-sentence investigation showed that the defendant had no prior convictions as a juvenile or adult, and there was no evidence he was ever charged with another offense.
• That the defendant did not seek psychiatric help for his sexual misconduct until after he was arrested.
The appellate panel found that the court record directly contradicted that finding, and that it was A.S. who went to an area hospital with depression and suicidal ideation and disclosed what he had done, prompting the investigation to begin.
Then, when interviewed by the police, A.S. again admitted his crimes, the court found.
“The clear impression given by the sentencing court was that [A.S] only self-servingly sought mental health treatment for his sexual dysfunction after he was arrested. This is a clear misrepresentation of the record,” Judge Bender wrote.
• That the impact of the crimes on the victims must be “absolutely horrendous.”
At sentencing, Judge McDaniel received letters from the two victims in the case, who wrote that they have forgiven their brother and miss him. Both wrote that they did not want him to go to jail and that they would like him to continue treatment.
“I think in spite of the letters that your brother and sister sent me, that the impact on them must be absolutely horrendous,” Judge McDaniel said at sentencing. “I can’t imagine a child of that age, children of that age going through being attacked by someone that they loved and trusted.”
But the Superior Court wrote that outside of those letters, there was nothing in the record concerning the impact of the crime.
Most concerning, the opinion continued, all of those impermissible factors considered by Judge McDaniel, appeared to guide her sentence above the recommended guidelines.
The court found a “disconnect” in evidence presented in the case which “told a wildly different story” than the sentence crafted by Judge McDaniel.
A.S. is a young man with no prior record of any kind, Judge Bender wrote, who has admitted his crimes and is seeking treatment. He has a supportive family that has forgiven him and wants to assist him in continuing his treatment.
Referencing the possible trend presented by the Bernal case, Judge Bender wrote that Judge McDaniel’s sentence of A.S. tends “to match such a pattern, given the extreme dissonance between the circumstances of this case and the sentence(s) imposed. This invites the obvious question: if the circumstances at issue here do not warrant a standard or mitigated range sentence, when, if ever, will such a sentence be warranted?” Judge Bender wrote.
Although the court did not go so far as to remove Judge McDaniel from the case against A.S. -— saying it did not have the authority to do so on its own -— it did suggest that he is able to ask for her to recuse herself from the resentencing. “in which context he may seek to develop a record of a pattern of bias, if one can be demonstrated by competent evidence.”
The Superior Court made a similar recommendation in its Dec. 19 opinion on Bernal, which it remanded for resentencing a second time.
Bernal was first sentenced by Judge McDaniel in 2013 to serve nine to 18 years in prison. However, the Superior Court found that punishment to be in error and ordered a new sentencing hearing.
Judge McDaniel then resentenced Bernal in 2015. Although the defense said at that hearing the guidelines called for three to 12 months incarceration in the standard range for the felony count, and probation for the misdemeanors, Judge McDaniel ordered Bernal to serve a total of six to 17 years in prison. That punishment included the statutory maximum for each count and stacked each one to run consecutively.
Bernal argued in his second appeal that Judge McDaniel abused her discretion and used the sentence as “retribution” for the crime.
“[T]he record reflects that the sentencing judge was determined to impose the maximum sentences permitted by statute, regardless of the guidelines,” the Superior Court wrote.
Paula Reed Ward: email@example.com, 412-263-2620 or on Twitter: @PaulaReedWard.
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