Court ‘troubled’ by Bedford sentencing
Panel notes Prinkey case appears to be ‘prosecutorial vindictiveness’
A former Bedford County man, incarcerated for a minimum of 25 years for the attempted indecent assault of a child, has lost his appeal to the Pennsylvania Superior Court, but the court indicated in its opinion released late last week that it was “troubled that this case appears to be a blatant example of prosecutorial vindictiveness.”
The unusual admission by a three-judge panel was outlined in a footnote to a 13-page opinion authored by Superior Court Judge John L. Musmanno.
The appeal involved former Hyndman resident Mark Allen Prinkey, 51, who is serving a 25- to 50-year prison term after admitting he made sexual advances to a 7-year-old girl in 2007.
Prinkey was originally sentenced to 10 to 25 years on charges of attempted aggravated indecent assault, attempted involuntary deviate sexual intercourse and corruption of minors.
But in his appeal of that 2008 sentence, the Superior Court tossed out the involuntary deviate sexual intercourse charge because of the ineffective handling of the case by Prinkey’s trial lawyer.
It sent the case back to Bedford County for resentencing on two remaining charges of attempted indecent assault and corruption of minors.
Prior to Prinkey’s new sentencing hearing, former Bedford County District Attorney William Higgins notified the defense that he was seeking a 25-year mandatory sentence on the attempted indecent assault charge.
Bedford County Judge Thomas S. Ling imposed a new sentence of 25 to 50 years and made it consecutive to the 7.5 to 20 years in prison Prinkey was sentenced to due to a previous child sexual assault.
Altoona attorney Jason M. Imler, representing Prinkey, filed an appeal to the new sentence, and when that was rejected by the judge on Aug. 28, 2018, he asked for a review by the Pennsylvania Superior Court.
One of the complaints against the new sentence was that Prinkey was being penalized for having successfully challenged his initial sentence of 10 to 25 years.
The defense, according to the Superior Court, acknowledges nothing in the law prevents a defendant from receiving a more severe sentence after a successful appeal, but in the Prinkey case, the defense argues that the new sentence was “vindictive.”
It contended the sentence was a violation of Prinkey’s due process rights .
The defense argued that the imposition of a mandatory sentence after a successful appeal “should be per se unconstitutional, as it places an unconstitutional obstruction in the exercise of a defendant’s due process rights.”
The Superior Court panel explained that the Prinkey appeal was a challenge to the legality of his sentence, and prior cases before the appeals court have ruled that challenges to the discretionary aspects of a sentence cannot be recognized in a post-conviction proceeding like the one before the court.
Discretionary aspects of a sentence are to be put forth on direct appeal — immediately after sentencing — and not as part of a post-conviction hearing, like the Prinkey case in 2018.
“Because Prinkey’s claim is not cognizable under the (Post-Conviction Hearing Act), we cannot grant him relief on his challenge to the sentence as vindictive,” the Superior Court concluded.
However, in a footnote, the panel explained, “We are constrained to reach this conclusion based upon the clear holding (in a precedential case). … However, we are troubled that this case appears to be a blatant example of prosecutorial vindictiveness.”
The appeals court also rejected two other arguments to the 25- to 50-year sentence:
— The defendant was never advised by his first appeals attorney that he could face a 25-year mandatory.
— The sentence was a violation of the bar against double jeopardy under the Pennsylvania Constitution. Imler said Monday he will ask for a new hearing before the full Superior Court. If he is not granted a new hearing, he will seek review of the case by the Pennsylvania Supreme Court.
“I absolutely feel if it wasn’t vindictive, it sure looks like it,” Imler said Monday.
“I hope this is an issue they (appeals courts) will be interested in,” Imler stated.
The Prinkey prosecution stemmed from an incident in 2007 in which he took a 7-year-old female into a barn to feed the calves.
Once inside, he asked the youngster if she had a boyfriend and if she had ever kissed a boy.
Prinkey, according to the case summary by the Superior Court, then put his hands on the girl’s shoulders, at which point the youngster fled. She told relatives about what happened, including her mother.
The defendant told investigators “he guessed his intent was pleasure” and stated the incident could have escalated into the victim performing oral sex (although he indicated he did not intend to commit oral sex — only kiss the girl).
He is presently housed at the State Correctional Institution at Laurel Highlands.