The state attorney general’s office filed an appeal with the state Superior Court this week, claiming Greene County Judge Farley Toothman’s probationary sentence given to Robert Allan Shipman was unreasonable and “did not fit the crime.”
Earlier, however, Toothman defended his sentence, claiming “probation complies with the law and is within the court’s discretion.”
Shipman, of New Freeport, was accused of illegally dumping drilling wastewater, sewage sludge and restaurant grease into area streams, a mine shaft and on various properties throughout the area between 2003 and 2009.
He also was accused of stealing more than $250,000 by overbilling companies that hired him to haul and dispose of wastewater by-products.
Shipman pleaded guilty in February to two counts each of theft, conspiracy, receiving stolen property and tampering with public records, 10 counts of unlawful conduct and eight counts of pollution of waters.
On June 15, Toothman sentenced Shipman to 7 years of probation and ordered him to pay $257,316 in restitution to companies he over-billed, $100,000 in fines, $25,000 to the attorney general’s office and to serve 1,750 hours of community service.
The commonwealth recommended Shipman be sentenced in the standard range of the sentencing guidelines for the most serious charge of theft, which is 9 to 16 months in jail.
In the appeal, Chief Deputy Attorney General James P. Barker said Shipman stole money from customers, falsified documents to mislead the state Department of Environmental Protection and polluted a number of streams without any regard to the consequences of this actions.
Toothman said Shipman had no past criminal record, was cooperative, remorseful and promptly paid restitution, fines and costs.
The court also recognized Shipman’s individual and family history, evidence of his character and the fact he would never again receive a DEP permit.
“If Shipman had any overwhelming sense of remorse, he would have entered a guilty plea without an agreement, or at least expressed some sense of remorse to the victims; he did neither,” Barker said.
Barker also said Shipman was able to make charitable contributions because he was running a criminal enterprise, using his employees as participants in this unlawful conduct.
In support of his sentence, Toothman further questioned the factual basis of the plea agreement and cited the state’s failure to consistently prosecute polluters.
Barker countered that there is “no real evidence that the environmental laws are not enforced. Moreover, the sentencing court’s orders and opinions relating to sentencing reflect a clear hostility toward the attorney for the Commonwealth and toward anyone charged with enforcing the environmental laws, as the sentencing court was of the view that these persons have not done an adequate job.”
The case involved three separate aspects of criminal activity, the appeal notes.
There was the theft of more than a quarter of a million dollars by Shipman from 17 separate entities; there was the disposal of gas well production water into various streams and other waterways; and there was the falsification of records that would have allowed DEP to fulfill its duty to monitor the waterways.
“A review of the record show that the rationale for the sentence expressed by the trial court is not supported by the record or simply does not warrant this lenient treatment of a serial thief, polluter and deceiver,” Barker said.
“Indeed, the record makes clear that the sentence was unreasonable and was the product of partiality, prejudice, bias or ill will,” Barker concluded.
Barker then cites a statement Toothman made that Barker refers to as “most remarkable.”
Toothman said, “That the plea agreement was negotiated to the complete satisfaction of the Commonwealth, defendant and the court who are now all bound together to enforce it. It may now seem that the ease and convenience of a guilty plea has become the tyranny of good intentions for the Commonwealth …”
Barker said the tyranny of good intentions refers to a book Toothman apparently has taken to heart, “The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice,” by Paul Craig and Lawrence Stratton, the latter being the director of the Stover Center for Constitutional Studies and Moral Leadership at Waynesburg University.
Based on anecdotal evidence, Barker said, Stratton and his co-author argue prosecutors abuse the plea negotiation process to deprive citizens of their constitutional rights (completely ignoring the fact that defendants such as Shipman have the right to counsel and the right to negotiate a favorable plea agreement and failing that, the right to proceed to trial).
“Needless to say, there is no room in the sentencing process for a judge to base a decision on such teachings,” Barker said.