Kephart appeals rejected
Pennsylvania’s Superior Court and Commonwealth Court in the past three weeks have rejected appeals in which a former trucking company executive from Clearfield County challenged his convictions for withholding contributions to his employees’ retirement funds and medical insurance accounts.
The Superior Court last Friday afternoon dismissed the appeal of Timothy Lee Kephart, 61, who ran Kephart Trucking near Clearfield.
Kephart contended his trial attorney, who negotiated a plea agreement with the former District Attorney of Clearfield County, William Shaw, was ineffective in his representation.
For instance, Kephart contended his attorney convinced him to plead guilty to 96 counts of theft by failure to make required disposition of funds, even though Kephart contended he was innocent.
He was initially sentenced to serve time in a state correctional institution for a term of eight to 32 years but that sentence was later reduced to seven to 20 years after Clearfield Common Pleas Court Judge Fredric J. Ammerman ruled the prosecution failed to prove its case for restitution.
Kephart complained his new sentence was imposed in absentia because at the time he was in the custody of the federal government, charged with bank fraud in Ohio.
In an opinion released Friday, Superior Court Judge James G. Colins discussed the plea agreement and stated that Ammerman had issued a “well-reasoned opinion” in explaining why he rejected Kephart’s claims.
The Clearfield judge noted that Kephart had initially been charged with 488 counts of theft, but his attorney had negotiated a plea for only 96 of the charges.
“It is not unreasonable for trial counsel to advise (Kephart) to plea to only 96 charges, knowing it could significantly lower the sentence and number of convictions he was facing,” Ammerman’s opinion stated.
Kephart also complained his counsel did not file a post-sentence motion challenging the new seven-year minimum sentence.
The Superior Court opinion concluded Kephart, who represented himself in his appeal, did not show that had he been present for the re-sentencing hearing that the outcome of his sentence would have been different.
Colins concluded Kephart failed to establish that a different sentencing outcome would have resulted if his counsel would have adopted a different strategy.
The Superior Court, therefore, upheld Kephart’s pleas and sentence.
The court’s decision came on the heels of an April 16 decision by the Commonwealth Court rejecting Kephart’s appeal in which he contended the District Attorney had failed to live up to his part of the plea agreement by failing to provide gradings for each of the offenses involved in his pleas.
Kephart adopted a unique approach in his Commonwealth Court appeal.
He filed a civil lawsuit against District Attorney Shaw, contending Shaw had violated a contract between the two, thereby attempting to use the civil court to vacate his criminal convictions.
Commonwealth Court Judge Patricia A. McCullough, in her 14-page opinion, agreed that a plea agreement is a “contract,” but concluded that Kephart failed to establish that he is entitled to attack his criminal case through a civil lawsuit filed in the county court.
Although contract laws apply to plea agreements, how the plea agreement should be enforced is an issue “that must be heard within the framework of the underlying criminal proceeding rather than a separate civil proceeding,” McCullough wrote.
She affirmed Ammerman’s dismissal of the Kephart’s civil lawsuit against Shaw.
According to the Commonwealth Court decision, Kephart is incarcerated on his state charges in the State Correctional Institution at Laurel Highlands.
Aside from his convictions in the state court, Kephart recently completed a 46-month stint in federal prison.
Kephart and two other men associated with Dart Trucking Co. in Columbiana, Ohio, concocted a check kiting scheme to defraud an Ohio bank of $3.6 million.
He was sentenced in 2013 in the bank fraud case and did his time in the Federal Correctional Institution in Loretto.
The sentence was imposed by the U.S. District Judge Dan Aaron Polster.
His 46-month sentence was to be followed by three years’ supervision.
In April, Polster transferred Kephart’s supervision from the U.S. Northern District of Ohio to District Judge Kim R. Gibson in Johnstown in the Western District of Pennsylvania.
Kephart’s supervised release from his federal offenses began on April 7 and will end April 7, 2024.
However the Ohio judge, in his order transferring supervision, stated, “This court hereby expressly consents that the period of probation or supervised release may be changed by the District Court to which this transfer is made without further inquiry of this court.”