Balsavage v. Wetzel
| Decision Date | 20 March 2013 |
| Docket Number | Civil Action No. 11–5817. |
| Citation | 936 F.Supp.2d 505 |
| Parties | Richard T. BALSAVAGE, Petitioner, v. John E. WETZEL, et al., Respondents. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
OPINION TEXT STARTS HERE
Osmer Deming, Deming Law Office, Reading, PA, for Petitioner.
Melissa J. Noyes, Berks County District Attorney's Office, Reading, PA, for Respondents.
Petitioner Richard T. Balsavage brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 At the conclusionof a Gagnon II Hearing (“Gagnon sentencing hearing”) to address Balsavage's probation violation, the presiding judge (the “Gagnon Judge”) sentenced Balsavage to 3 1/2 to 7 years of incarceration, followed by 42 years of probation. Balsavage appealed this sentence by filing a PCRA petition based on the fact that he had been denied his right of allocution. The Gagnon Judge granted Balsavage's appeal and ordered a new Gagnon II Hearing (“Gagnon resentencing hearing”). At the Gagnon resentencing hearing, the Gagnon Judge resentenced Balsavage to 24 1/2 to 49 years of imprisonment. The same judge presided over both the Gagnon sentencing and Gagnon resentencing hearings and relied upon the same facts and justifications to fashion both sentences. Despite this, the Gagnon Judge increased Balsavage's prison term sevenfold. To support this dramatic increase in Balsavage's sentence, the Gagnon Judge provided the following additional justification: “the fact that you appealed every decision and sentence this Court ever imposed on you.” Respondent's Appendix (“App.”) R213a at 9:14–15.
Balsavage properly argues that his increased sentence violates the Due Process Clause of the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny instructs that Balsavage's increased sentence violates due process because it is the product of clearly articulated judicial vindictiveness. As unpalatable as the underlying facts of this case are, the law must prevail. For the reasons explained below, I will conditionally grant the petition for writ of habeas corpus.
On May 23, 2005, Balsavage pled guilty to eight counts of sexual abuse of children, in violation of 18 Pa. Cons. Stat. Ann. § 6312(d). App. R23a–34a. Specifically, Balsavage admitted to knowingly possessing eight photographs of his girlfriend's son, who was approximately two years old, posing in the nude or partially nude. App. R24a. On September 13, 2005, the Original Sentencing Judge sentenced Balsavage to a term of 9 to 23 months of incarceration on Count I, followed by a total of 7 years of probation for Counts II through VIII. App. R27a–35a.
On December 20, 2006, Balsavage completed his sentence on Count I and began serving his 7 year period of probation on Counts II through VIII. App. R39a. Shortly after his release, Balsavage violated his probation. On May 21, 2007, at the initial proceedings for his Gagnon II Hearing, Balsavage admitted to one violation of probation, for viewing pornography. App. R42a at 3:9–12. The Gagnon Judge was a different judge than the Original Sentencing Judge.
A few days later, on May 31, 2007, the Gagnon Judge conducted an extensive Gagnon sentencing hearing to determine the appropriate sentence for Balsavage in light of his probation violation. App. R42a at 3:8–12. The Gagnon Judge heard the most damning testimony from Balsavage's probation officer, his cellmate, two sex offender therapists, and a sex offender treatment specialist. App. R41a–60a. The Gagnon Judge relied upon a Treatment Summary that was prepared by the sex offender treatment specialist that summarized Balsavage's treatment while he was on probation. App. R65a–70a. This Treatment Summary was discussed at length during the hearing, and the Gagnon Judge admitted it into evidence. App. R54a–57a.
At the Gagnon sentencing hearing, the Gagnon Judge learned an abundance of information about Balsavage's sex offender treatment history, his mental disorders, and his capacity for rehabilitation. App. R41a–71a. The Gagnon Judge learned that Balsavage admitted to: (1) victimizing twelve additional minors and provided intimate details of these victimizations; (2) ongoing struggles with pedophilia fantasies to which he sometimes masturbated, and a sexual interest in urophilia and coprophilia; (3) an addiction to marijuana and alcohol that began at age twelve; and (4) fantasies about doing something like the Amish schoolhouse murders. Id. Several witnesses relayed these admissions to the Gagnon Judge, and the Treatment Summary explicitly detailed each of Balsavage's admissions. Id. After learning this information, the Gagnon Judge concluded that Balsavage is “not amenable to treatment.” App. R58a at 66:11, 67:5–6.
in closing, the Commonwealth argued to the Gagnon Judge that the testimony of the witnesses led to the conclusion “that [Balsavage] is at a high risk of reoffending, that he is a danger to the community, and that at this time total confinement is necessary ....” App. R59a at 69:3–9. Based on the evidence presented of Balsavage's ongoing deviant thoughts, which he continued to act upon, the Gagnon Judge concluded: Id. at 71:10–19. The Gagnon Judge substantially increased Balsavage's original sentence of 9 to 23 months of imprisonment, followed by 7 years of probation, and sentenced Balsavage to 3 1/2 to 7 years of imprisonment, followed by 42 years of probation. App. R59a. The Gagnon Judge emphasized that this was a App. R60a at 73:25–74:3. The Gagnon Judge justified this lengthy increase based on the need to protect minor children, protect the community, and rehabilitate Balsavage to prevent him from reoffending. App. 59a–60a.
Balsavage appealed and the Pennsylvania Superior Court, without commenting on the propriety of the sentence, affirmed the sentence on March 12, 2008, 953 A.2d 593 (Pa.Super.2008). App. R163a–167a. On August 4, 2008, Balsavage filed for relief under the Post Conviction Relief Act (“PCRA”), 42 Pa. Const. Stat. Ann. §§ 9541–46. App. R168a–201a. In his PCRA petition, Balsavage alleged that he was denied his right of allocution during the May 31, 2007 Gagnon sentencing hearing. App. R205a–209a. On April 17, 2009, the Gagnon Judge granted Balsavage's PCRA petition based solely on the denial of the right to allocution and ordered a Gagnon resentencing hearing. App. R203a.
On May 27, 2009, the Gagnon Judge held the Gagnon resentencing hearing. While the Gagnon Judge acknowledged that he had reviewed an amended presentence investigation report,2 the Gagnon Judge himself noted that App. R211a–212a at 4:20–5:1. At the beginning of the Gagnon resentencing hearing, Balsavage addressed the court and stated that he took full responsibility for his wrongs and was truly sorry for what he had done. App. R211a at 3:21–4:14. Following this statement, the Gagnon Judge proceeded to question Balsavage, who was not under oath, about information that had been given to the Gagnon Judge at Balsavage's original Gagnon sentencing hearing on May 31, 2007. See App. R212a–213a. Specifically, the Gagnon Judge asked Balsavage questions about his admissions to his sex offender treatment specialist contained in the Treatment Summary and about the allegation that Balsavage had fantasies about the Amish schoolhouse murders.3 App. R212a. No witnesses testified at the Gagnon resentencing hearing, no testimony under oath was given, and no exhibits were considered. Moreover, no new, or newly discovered, information was presented at the Gagnon resentencing hearing.
At the conclusion of the Gagnon resentencing hearing, the Gagnon Judge repeated what he had said at the original Gagnon sentencing hearing, that Balsavage's probation violation merited “a very lengthy resentencing.” App. R213a at 10:4–6. As justification for this lengthy sentence, the Gagnon Judge explicitly relied on “the fact that you appealed every decision and sentence this Court ever imposed on you.” Id. at 9:14–15. Among the other factors the Gagnon Judge considered were Balsavage's history, his high risk of recidivism,4 his lack of remorse, and his inability to comply with probation, all of which led the Gagnon Judge to conclude that the maximum sentence was “absolutely required to protect the most vulnerable members of our community.” App. R212a–213a. The Gagnon Judge then sentenced Balsavage to 24 1/2 to 49 years of imprisonment, a term of imprisonment that was seven times longer than Balsavage received at the original Gagnon sentencing hearing. As justification for this new “lengthy sentence” the Gagnon Judge told Balsavage: “It is, obviously, this Court's intention to keep you i n custody and away from any minor children and to protect the members of the community for as long a period of the time as is available to this Court.” App. R213a at 12:12–16.
Because the Gagnon Judge resentenced Balsavage to a term outside the guidelines adopted by the Pennsylvania Commission on Sentencing, the Gagnon Judge had to “provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines to the commission.” 42 Pa. Cons. Stat. Ann. § 9721(b). In his § 9721(b) statement, the Gagnon Judge explained that he resentenced Balsavage outside...
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