Judge to review sentence
WAYNESBURG – Greene County President Judge Farley Toothman is considering re-sentencing a Clarksville woman who was sentenced in October after pleading guilty to an April 2014 home invasion.
During a hearing Thursday, Toothman said he was unaware of a sentence modification motion District Attorney Marjorie Fox filed in November. He said the Clerk of Courts did not notify him of the motion in which Fox challenged the leniency of the sentence.
Darlene Nakutis, 43, and Edward Passamonte Jr., 37, both of 23 Locust St., Clarksville, pleaded guilty to entering a home at 105 Third St., Jefferson, destroying $8,000 worth of property and assaulting James Popielarcheck, his wife, Charlotte, and their 32-year-old daughter, Alexis.
Nakutis and Passamonte pleaded guilty in May 2015 to criminal trespassing, aggravated assault, criminal mischief, simple assault and harassment.
Fox reiterated her motion in court Thursday, citing abuse of discretion and asking that Toothman explain why he gave Nakutis county intermediate punishment and probation instead of jail time.
“The court hasn’t indicated why she’s special,” Fox said after the hearing.
Fox said that with some violent crimes or personal injury crimes, the defendant is not eligible for CIP, which is a five-year diversionary program. But Fox had waived the ineligibility in this case to let the court decide whether or not CIP would be appropriate.
“I waived ineligibility, but that was by no means an endorsement,” she said in court Thursday.
In October, Toothman sentenced Nakutis to two years in CIP with 20 days incarcerated in Greene County jail followed by 710 days of probation, along with $900 of fines and $250 in restitution to the Popielarcheck family.
Fox also questioned whether or not the sentence included a CIP program that Nakutis would have to participate in. She said that, typically, CIP includes drug or alcohol monitoring, house arrest, drug treatment or another program for a defendant to complete in lieu of incarceration.
“In this case, I did not see any program that would make this CIP,” she said. “My understanding is that CIP is something different than probation.”
Toothman said Thursday that Nakutis was participating in anger management meetings and submitting drug tests through probation and he argued additional probation requirements could fulfill the CIP program.
“We can all be right and still disagree,” Toothman said. “And we can all be wrong and still disagree.”
Toothman said he needed time to listen to the transcripts of the sentencing and will need to determine if he can still rule on Fox’s motion.
Nakutis’ attorney, Almon Burke, brought up a law stating that if the judge doesn’t rule on a modification motion within 120 days then the motion is denied.
“By operation of law the motion should already be denied,” Burke said.
Fox argued that because the Clerk of Courts did not file a denial with the case docket, Toothman should still be able to rule on it. She said that if, however, he decides that the motion is denied, she will file an appeal.
Toothman sentenced Passamonte in October to 2 to 4 years in a state prison. He also recommended him for consideration into boot camp and made him eligible for a Recidivism Risk Reduction Incentive program, which, if he is accepted, could reduce his minimum prison sentence to 18 months. Passamonte also had to pay court fines and restitution to the Popielarcheck family.
At the time of his sentencing, Passamonte was incarcerated for a case in Washington County, where he was charged with simple assault and harassment against Nakutis.