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An opinion handed down by the Pennsylvania Superior Court this week has found that a Bedford County man failed to prove his new minimum sentence of
26.5 years on child abuse charges -- more than double his original sentence for the crimes -- was based on the "vindictivness" of the judge and district attorney.
Mark Allen Prinkey, 53, who is serving his sentence in the State Correctional Institution at Laurel Highlands, sought to show that his new and much tougher sentence was unconstitutional because Bedford County authorities were upset his appeal was at least partially successful.
Prinkey of Hyndman was arrested in 2007 for placing his hands on the shoulders of a 7-year-old girl and asking her if she had ever been kissed by a boy.
The youngster told her mother about Prinkey's statement and the mom summoned police.
During his questioning by police, Prinkey stated he never attempted to kiss the child but indicated sexual acts might have occurred if the child had not run away from him.
Prinkey was charged with attempted involuntary deviate sexual intercourse, attempted indecent assault and corruption of a minor.
He was convicted of the offenses, and Judge Daniel Lee Howsare sentenced him to 10 to 25 years in prison.
His direct appeal to the Superior Court was dismissed because his counsel failed to file the proper paperwork, but in a post-conviction appeal to the Superior Court, he complained his counsel was ineffective.
The Superior Court sent the case back to Bedford County for further review.
This time around Judge Thomas S. Ling ruled that Prinkey's appeal to the charge of attempted involuntary deviate sexual intercourse "lacked merit."
On appeal, however, the Superior upheld the defense contention that there was insufficient evidence that Prinkey had taken a substantial step to engage in sexual intercourse with the child.
It vacated the involuntary deviate sexual intercourse conviction and ordered Prinkey resentenced on the other two charges.
When it came to resentencing Prinkey, then District Attorney William Higgins decided to seek a mandatory 25-year minimum sentence because Prinkey was a repeat offender.
Ling thought he could not refuse to impose the mandatory sentence requested by the prosecution, and according to this week's Superior Court opinion, the new sentence was 26.5 to 53 years behind bars.
The defense charged that the new sentence was the result of "vindictiveness" by Bedford officials and the appeal went all the way to the Pennsylvania Supreme Court.
The state's highest court recently sent the Prinkey appeal back to the Superior Court to specifically address Prinkey's vindictiveness argument.
In an opinion written by Superior Court Judge Mary Jane Bowes, the Superior Court discussed a 1969 ruling by the U.S. Supreme Court that stated vindictiveness must play no part in the sentence (a defendant) receives after a new trial (or a new sentence) has been ordered.
The fear of such vindictiveness "may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction.
"Due process also requires that a defendant be freed of apprehension of such retaliatory motivation on the part of the sentencing judge," the Supreme Court outlined.
The Superior Court reviewed Pennsylvania law and noted that the state Supreme Court also has indicated a court may not punish a defendant for exercising his appellate rights.
But it concluded that a presumption of vindictiveness that occurs when a second sentence is higher than a first sentence may be overcome by information justifying the increased sentence.
The appeals court decision emphasized neither Pirnkey nor his attorney presented any evidence of vindictiveness and pointed out that the prosecution presented a convincing statement of why it decided to go after the mandatory the second time around.
"This is a man who was out of jail for a couple of months (on a previous child sexual abuse charge) before he reoffended. He's a pedophile. He's a sexually violent predator. He has a sincere interest in having sex with children," state former Bedford District Attorney William Higgins.
"That's what he is and there's only one way to keep society safe from him, and that's to keep him behind bars. And, that's why the mandatory is there," the Superior Court stated as it reviewed Ling's sentence.
The Superior Court concluded, "We find no error of law or abuse of discretion in (Ling's) conclusion that (Prinkey's) claim of vindictiveness lacked merit, which is supported by the record and fee of legal error."
Now that the Superior has reviewed the vindictiveness claim at the request of the Supreme Court, the case will likely be returned to the state's highest court for a decision on the vindictiveness issue.