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Blair judge’s ruling upheld

Sullivan vacated some charges in robbery case to correct rights violation

Efforts by a Blair County judge to address a constitutional violation in a case involving an Altoona man charged with conspiracy and robbery have been upheld by the Pennsylvania Superior Court.

Nicholas T. Kruge, 32, was sentenced to a state prison term of 15 to 30 years in 2017 for robbing FeFi’s grocery store on the 1200 block of Second Avenue.

But in a decision a year ago, Blair County Judge Timothy M. Sullivan dismissed the conspiracy and robbery charges against Kruge after a court-appointed attorney argued that Kruge was not informed by his trial counsel that faced a mandatory 10-year sentence on the robbery offenses because of a past crime of violence.

Hollidaysburg attorney Paul Puskar contended that had Kruge known about the 10-year mandatory he faced, he would not have rejected the prosecution’s plea offer of three to 10 years.

During a post-trial hearing in the case, Kruge agreed he would have accepted the plea agreement “in a heartbeat” — if he had been made aware of the mandatory sentence he faced.

Kruge, charged with conspiracy to commit robbery, robbery, theft, receiving stolen property and two counts each of simple assault and terroristic threats, eventually decided to take his case before a jury and was convicted of all the offenses.

While asking for money during the March 28, 2015, robbery at FeFi’s, he pointed a gun at the store clerk and a customer who entered the store.

Upon receiving money, he entered a car driven by a co-conspirator and got away.

According to the Pennsylvania Superior Court, Kruge and his trial attorney entered plea discussions with the prosecution and the “last, best offer” he received was for a minimum of three years and a maximum of 10 years.

He eventually chose a trial by jury — against the advice of his trial counsel — and was convicted of all counts on Dec. 8, 2016.

It wasn’t until the day of sentencing that the defendant and his attorney were given notice that the prosecution was seeking the 10-year mandatory on the conspiracy and robbery offenses because Kruge had a prior crime of violence on his record.

Sullivan found that Kruge was not made aware of the 10-year mandatory prior to rejecting the plea agreement and that his attorneys had been “ineffective” for not informing him about the lengthy sentence he faced.

The question became how to correct the violation of Kruge’s Sixth Amendment rights, which guarantee effective assistance of counsel.

The judge decided he:

n Lacked jurisdiction to reverse the jury’s guilty verdicts — a decision that would grant Kruge a new trial.

n Could not simply resentence Kruge because the law required a 10-year mandatory prison sentence on the charges of conspiracy and robbery.

After reviewing a prior Superior Court decision, Sullivan decided to vacate the conspiracy and robbery charges and order resentencing.

He also let the guilty verdicts for simple assault and terroristic threats stand.

The government opposed the decision to vacate the convictions.

It argued, “Sixth Amendment remedies should be ‘tailored to the injury suffered from the constitutional violation’ … thus a remedy must ‘neutralize the taint’ of a constitutional violation while at the same time not grant a windfall to the defendant. …”

In an opinion issued Friday afternoon, a Superior Court panel composed of Daniel D. McCaffery, Mary Jane Bowes and James G. Colins upheld Sullivan’s decision. It stressed that reaffirming the convictions and sentencing Kruge to a shorter term in prison was not permissible.

“Furthermore, (Judge Sullivan) is not reversing the two convictions, nor vacating them for a new trial, as such a remedy may ultimately create a windfall for (Kruge).

“Instead, as (Sullivan) reasoned, the vacating is necessary to reach the ultimate relief intended: resentencing.”

The opinion, written by McCaffery, stated it affirmed Sulllivan’s order to schedule a resentencing hearing to impose a new sentence of three to 10 years imprisonment, “in accordance with the plea bargain (Kruge) previously rejected due to his attorney’s deficient performance.”

Kruge is an inmate at the State Correctional Institution at Phoenix, Montgomery County.

The getaway driver in the robbery, Kruge’s co-conspirator, was sentenced to a term of 3.5 to 25 years.

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