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Second resentencing ordered in robbery

Effort to recover nude photos resulted in plea deal for city man

An appeals court for the second time has ordered the resentencing of an Altoona man charged with robbing a Mahaffey photographer in an effort to recover nude photos of his girlfriend.

Just over a year ago, Clearfield County Judge Fredric J. Ammerman resentenced Michael Jerome Irby Jr., 29, to a term of 14 months to five years on charges of robbery and terroristic threats.

Irby’s initial sentence of 16 months to five years had been vacated by the Pennsylvania Superior Court because the judge had been given the wrong sentencing guidelines and the Superior Court concluded the judge based his sentence on Irby possessing a firearm during the robbery.

The defendant repeatedly denied carrying a firearm when he went to the victim’s home in June 2016 and took his camera, computer and cellphone.

The defendant entered guilty pleas in 2017 to reduced charges of robbery and terroristic threats.

During sentencing, the judge told Irby, “The commonwealth is alleging that you were the principal in regard to the robbery and that you were the one that had a handgun, not the co-defendant,” referring to Irby’s girlfriend, Sara A. Wolfe, who was 22 at the time.

Irby insisted his guilty plea contained a stipulation that he would not receive a mandatory minimum sentence for possession of a firearm during the robbery.

During sentencing, Irby denied that he possessed a firearm and pointed out he didn’t plead to a charge that stated he used a handgun during the robbery.

The case was sent back for resentencing under new guidelines, citing a minimum sentence of six to 14 months, but again the judge — who imposed a 14-month to five-year sentence on Jan. 31, 2019 — concluded the sentence at the top of the new guideline range was warranted because “robbing somebody with a handgun is nothing to sneeze at.”

The judge stated that Irby’s possession of a handgun was mentioned in the criminal complaint and affidavit of probable cause, which the judge stated, Irby accepted as a factual basis for his plea.

Irby, acting as his own attorney, appealed the 2019 sentence, challenging once again the judge’s imposition of a sentence based on his purported use of a firearm.

In an opinion issued Friday, a three-judge Superior Court panel stated, “(Irby) claims that the sentencing court considered the use of a firearm despite the terms of his plea precluded a finding to that effect, making the sentence unlawful.

“We agree and therefore vacate the judgment of sentence as to the robbery conviction,” the panel concluded.

The appeals court opinion stated, “It is fundamental to due process that an accused may not be convicted on the basis of anything not admitted in the evidence.”

It went on to cite a 1987 opinion as a precedent that concluded possession of a weapon cannot be used against a defendant where the fact has been excluded from the negotiated terms of a plea agreement.

The Superior Court opinion pointed out that the prosecution reduced the seriousness of Irby’s robbery charge from a first-degree felony to a second-degree felony and that the court concluded Irby “reasonably understood that he was not admitting to the use of a firearm and that the allegations had been modified accordingly.”

The prosecution did not contradict Irby’s assertions that that he was not admitting the use of a weapon, the opinion noted.

“Nevertheless, the sentencing court considered Irby’s possession of a weapon during the robbery as an admitted fact and a relevant sentencing factor,” it stated.

It concluded the sentencing court misapplied the law and that Irby must be resentenced.

The Pennsylvania Inmate locator shows that despite the 14-month minimum, Irby remains incarcerated at the State Correctional Institution at Dallas.

Irby’s co-conspirator was sentenced to jail term of 11 to 23 months on charges of theft and received two years’ probation for conspiracy to commit simple assault to run concurrently.

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