Jun 5, 2013 4 min read

The state Superior Court has affirmed the Greene County Court’s sentence of waste hauler Robert Allen Shipman, who pleaded guilty last February to overbilling clients and illegally dumping drilling wastewater into area stream.

The appellate court ruled Wednesday on an appeal filed by the state attorney general’s office that claimed the probation sentence given to Shipman by Judge Farley Toothman was unreasonable and too lenient.

The court’s memorandum opinion affirming Toothman’s sentence concluded Shipman’s sentence “was not clearly unreasonable” and that the trial court did not abuse its discretion in fashioning it.

Dennis Fisher, spokesman for the attorney general’s office, declined to comment on the decision.

Shipman’s attorney, Christopher Blackwell, said the decision “completely vindicates” Toothman’s sentence and speaks to “how well thought out and well reasoned” it was.

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.

It argued the sentence was “remarkably lenient” and unreasonable given the case involved the theft of more than $250,000, the illegal dumping of gas well wastewater into multiple streams and the falsification of records that would have allowed the state Department of Environmental Protection to fulfill its duty to monitor waterways.

Toothman had cited a number of mitigating factors in sentencing Shipman. He noted Shipman had no past criminal record, was cooperative, remorseful and promptly paid restitution, fines and costs and had divested himself of his two waste water companies.

He also recognized Shipman’s individual and family history, evidence of his character, including his charitable donations, and the fact he would never again receive a DEP permit.

In addition, Toothman cited the state’s failure to criminally prosecute environmental crimes, countering the commonwealth’s early arguments that a jail sentence would help deter other polluters.

In its appeal, the commonwealth argued Shipman’s responsibility to his family was not a legitimate mitigating factor and his ability to make charitable contributions resulted from running a criminal enterprise.

It further argued no evidence was presented that environmental laws are not being enforced and any issue of enforcement would not serve as a basis for mitigating the sentence. That Shipman had sold his businesses also was not a proper mitigating factor considering he had received a windfall from the sale, the commonwealth said.

Shipman’s attorney, in response, had argued Shipman’s family situation was relevant and noted Shipman had apologized for his crime, paid restitution in full before sentencing and agreed to pay a significant fine.

He also argued no testimony was presented that any environmental cleanup was necessary as a result of Shipman’s actions. Although the theft counts carried the longest possible sentence, failure to impose a jail sentence did not automatically result in the sentence being unreasonable, he said.

Commonwealth Court agreed with Shipman, noting that the sentencing court had the benefit of a pre-sentence report. “Thus we are required to presume all sentencing factors were weighed,” it said.

The sentencing court further did not justify the sentence solely on the lack of enforcement of environmental crimes or because Shipman had made charitable contributions, the court said. The sentencing court did appropriately consider Shipman’s family issues, which are routinely considered as potential mitigating factors in sentencing, it said.

The appellate court noted Shipman also paid restitution in full and a significant amount of money in fines, that he must serve community service and he has no criminal record.

“Since the court more than adequately considered the pertinent sentencing factors and merely weighed them in a manner inconsistent with the Commonwealth’s desire, we find it (the commonwealth) is not entitled to relief,” the court said “… (Shipman’s) sentencing was not clearly unreasonable and the court did not abuse its discretion in fashioning (Shipman’s) sentence.”