HOLLIDAYSBURG - A Blair County defense attorney is challenging the standard court practice of making everybody in a group responsible for payment of restitution that results from vandalism or criminal mischief.
Altoona attorney Douglas Keating doesn't believe that practice is fair when it comes to a man he represents, Tyler Lee Kensinger, 20, of 246 Grazierville Road, Tyrone, who could end up being responsible for an estimated $150,000 damage to the former Moran's Nursing Home, 402 Maple Ave., Bellwood.
Keating told Senior Judge Hiram A. Carpenter of Blair County last week that Kensinger knows he will have to pay restitution, but Keating is arguing that Kensinger should only have to pay for the damage he did to the home and not be responsible for potentially the full amount.
During a hearing Thursday, Keating said that Kensinger helped dismantle heat registers in some of the facility's rooms.
Keating is basing his legal argument on the point that Kensinger entered a plea to criminal mischief stemming from the damage to the home but that other charges, such as burglary and conspiracy, were dismissed as part of the plea agreement.
Because Kensinger was not convicted of conspiracy, being in agreement with others, Keating doesn't think his client should have to be responsible for the entire amount of the damage.
Carpenter said Keating's argument, as far as he could determine, is one of "first impression" or a question that challenges the standard belief that all of those involved in the damage are responsible for paying the full restitution.
In practical terms, it means that if nobody else in a group pays, the remaining person is responsible for the entire amount.
Courts have long held, the attorney emphasized, that restitution among a group of individuals is "joint and several," meaning that everybody is responsible for paying until the restitution has been made.
Blair County Assistant District Attorney Deanne Paul and Keating have come up with a long list of prior court decisions on the subject of restitution, but both said that none directly address the point whether someone who did not plead guilty to conspiracy can be held responsible for the whole price tag.
Paul explained why Kensinger and another adult could end up having to pay the entire bill.
The group that entered the closed nursing home on Oct. 4, 2012, looking for copper to steal, included four juveniles and two adults.
Kensinger and Daniel Carl Morse, Altoona, both 19 at the time, were the adults.
The maximum amount of restitution for juveniles is $2,500 each, and the four juveniles have been ordered to pay that amount. That comes to $10,000, which hardly begins to cover the entire bill.
Keating, during the sentencing hearing on Sept. 20, gave an inkling of the problem when he said to Carpenter, "This is a good ... I submit, a good young man who unfortunately made some bad decisions during this time [of the break-in] in question your honor. ... The restitution amount just bothers me in this case."
He went on to state he knew the restitution question was not before the judge in September.
Last Thursday, it became a major issue for Carpenter.
The first thing he needs to do is hold a restitution hearing to pinpoint what is owed.
The initial investigation determined there was $330,000 in damage, Paul said, but discussions were held with the insurance company, and the figure now stands at about $150,000, she estimated.
According to the criminal charges, there was damage to every floor and just about every room. For instance, a sink was ripped from the wall. A pick was used to make holes in the walls. The copper piping was damaged throughout the home. Even the electrical wires were cut. Tiles were ripped from the ceiling, and storage rooms were ransacked.
The building was sprayed with graffiti, and the heat registers were taken from the walls.
The damage, item by item, is listed in a thick document, Paul explained.
Also found in the home were beer cans, candles and two syringes.
Carpenter has given Keating and Paul three weeks to submit legal briefs.
"This decision is going to be a rare one that will contribute something new
to Pennsylvania law," Carpenter said.
He jousted with the attorneys, stating he would not be surprised if his decision, whatever it will be, is appealed to a higher court.
While Keating does not want to see a 20-year-old saddled with such a huge bill, Paul made the point that restitution under the law is not a punishment. It's purpose is rehabilitative because it helps the perpetrator understand the harm he has done, she said.
Mirror Staff Writer Phil Ray is at 946-7468.