Cambria judge asked to clarify man’s sentence

Superior Court sends case back for rehearing

Pennsylvania’s Superior Court has asked a Cambria County judge to clarify a prison sentence he imposed on a Salix man charged with stealing tools from a Lowe’s store in Richland Township.

Adam Tyler Horner, 29, faced two sets of charges from his activities in the store on Jan. 5, 2012.

Horner was charged with theft by deception and theft by failure to make required disposition of funds.

For the theft by deception charge, he was placed in the county’s Accelerated Rehabilitative Dispositon program for 60 months. On that charge he was ordered to pay restitution of $1,300.

For failure to make required dispositon of funds, Horner was sentenced to a concurrent term of ARD plus 24 months’ probation. The probation was to be consecutive or to be served after completion of his ARD, with both sentences to be supervised by the Cambria County Parole and Probation Department.

Horner was to pay restitution of more than $4,000 on the second offense.

Later, Horner was found in violation of his ARD conditions because he failed to make restitution, and in late 2013, he was ordered by the court to pay $200 and to abide by a payment plan.

In April 2014, he tested positive for drugs during a visit to the probation office and in May, his ARD was revoked.

The court sentenced Horner to a four- to 12-month prison sentence on the first charge, and immediately furloughed him to the county Day Reporting Center.

The consecutive 24-month probation sentence remained on the second charge.

The Superior Court reported, “In the two years that followed, Horner committed numerous parole and probation violations at both dockets and was resentenced on several occasions.”

On Aug. 3, 2017, a petition was filed concerning the theft by deception charge when he tested positive for drugs upon his return from work release.

But during a hearing on Aug. 8, 2017, the judge found Horner in violation of probation to the second charge — theft by failure to make required disposition of funds — and his consecutive probation sentence was changed to 24 months in prison.

Horner’s Ebensburg attorney, Timothy S. Burns, filed an appeal to the Superior Court claiming that Judge Timothy P. Creany lacked the authority to revoke the 24-month probation (the second charge) while Horner was still serving his sentence on the first charge, because it was supposed to be consecutive to the first charge.

A Superior Court panel that included Judge John L. Musmanno, Anne E. Lazarus and John T. Bender, has sent the case back to Cambria County for rehearing to determine whether the judge meant to revoke the parole that Horner was serving on his four- to 12-month sentence or to revoke his 24 months’ probation and resentence him to prison.

The appeals court stated it can’t tell from the court dockets whether the judge intended to revoke Horner’s parole to the first charge or change the probationary sentence imposed on the second charge.

In a footnote, the Superior Court judges explained a revocation of parole does not involve a new sentence, while revoking probation presents all the alternatives available to the judge at time of the original sentence.

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