Court: Judge’s mass sentence wrong

Cambria judge sent 54 to jail for unpaid costs, fines, restitution

The Pennsylvania Superior Court on Thursday ruled that a Cambria County judge violated the U.S. Constitution and Pennsylvania’s Rules of Criminal Procedure by imposing a mass prison sentence on 54 individuals who were behind on their costs, fines and restitution payments.

One of those 54, Gregory Thomas Mauk, 50, a painter from Rector in Westmoreland County, appealed his prison sentence of two weeks to Superior Court, which vacated the sentence.

According to a court opinion written by Judge Deborah A. Kunselman, Pennsylvania rules provide “a court shall not commit the defendant to prison for failure to pay fine or costs unless it appears after hearing that the defendant is financially able to pay the fine or costs.”

Cambria County Judge Tamara R. Bernstein, a former assistant district attorney who imposed the sentence on 54 people attending a hearing on Feb. 20, 2017, said Friday through her secretary that she could not comment publicly concerning the ruling.

Mauk, who owed restitution for a series of thefts, was represented by attorneys Sara Rose of the American Civil Liberties Union, David Millstein of Westmoreland County and Andrea D. Christy of Philadelphia.

The county was represented by Assistant District Attorney Scott M. Lilly.

The court procedure that led to Mauk’s jailing started with a contempt hearing in December 2016, in which the judge divided those not making regular payments into two categories: persons who had not been found in contempt on prior occasions and those who had been found in contempt but who continued to be in arrears of their court-ordered payments.

Mauk was in the group with no prior contempts, and when his case reached the judge, she found him in contempt, ordered him to spend two weeks in jail and then suspended his sentence with the order that he make payments of $150 each in January and February 2017.

He missed both deadlines and was called back to court on Feb. 17, 2017, at which point the judge, without further hearing, conducted a mass sentencing of all 54 individuals who had failed to meet their court-ordered payments.

If there was any disagreement with the judge’s order, they could meet with a clerk to explain their respective positions or with their attorneys.

After 11 days behind bars, Mauk was freed pending the outcome of his appeal.

Lilly argued that because Mauk was freed, his appeal was “moot,” but the Superior Court stated it had the power to hear the case, pointing out when a trial court allegedly acts beyond its authority by failing to afford procedural due process, the appeal is not considered moot.

The appeals court found the Cambria judge overstepped her bounds by:

– Not permitting the individuals before her to speak during the hearing.

– Not allowing them to question the costs and fines clerks who declared them in arrears.

– Not giving them the opportunity to speak to counsel before sentencing.

Kunselman’s opinion stated, “This high speed sentencing violates the Due Process Clause of the 14th Amendment for it has been said, ‘The fundamental requisite of due process of law is the opportunity to be heard.'”

The opinion, joined in by Judge Mary Jane Bowes and Judith Ference Olson, went on to explain the failure to pay arrears must involve legal intent to violate the payment order.

The Superior Court stated some people may not have been able to pay their costs and fines.

It stated, “To decide if a refusal to pay is willful, the finder of fact (the judge) must examine the totality of the defendant’s life circumstances.”

It said the “impossibility of performance of the court-ordered act is an absolute defense.”

The opinion went on to explain that judges must hold separate hearings for each person accused of contempt to determine if his noncompliance was willful and stressed this must be done every time someone appears for a costs and fines proceeding.

“This mass incarceration presumed that all failures to pay arose from (the individual’s) deliberate disregard of the court’s order,” wrote Kunselman.

Lilly said the DA’s office was not present for the mass sentencing hearing. Since then the DA’s office has decided to attend the costs and fines hearings, Lilly said.

Rose of the ACLU complimented Mauk for standing up for his rights even though he had been released from prison. She said he did it because he wanted to stop what happened to him from happening to others.

She said the effort by the ACLU in Cambria County is part of a larger, statewide project to prevent the jailing of people even though they may be destitute or homeless.

The ACLU, which wants to eliminate a form of “debtor’s prison” being practiced in Pennsylvania, has filed a similar appeal challenging procedures in costs and fines hearings in Lebanon County.

She said a question that must be resolved is the criteria a judge should use to determine if a person is able to pay his costs and fines.

“We are very pleased with the decision,” she said, explaining that the Superior Court took a broad view of the situation.

Rose believes that Cambria County has changed its procedures.

One person represented by the ACLU on the day Mauk was imprisoned returned to the costs and fines court at a later date and reported it was “like night and day,” she said.

That day, nobody was sent to prison for nonpayment of fines and costs, Rose stated

The Mirror was unable to contact Cambria County Court Administrator William J. Valko for further explanation about the county’s revised procedures for costs and fines hearings.

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