Todd Mosser Appeals Lawyer Pennsylvania

Man convicted of drug offenses entitled to new sentencing

SEP 8, 2019, PHIL RAY,

A federal magistrate judge has issued an addendum to a recommendation he made in mid-August, raising the possibly that a convicted Altoona drug dealer could end up with lower minimum prison sentence than he is now serving.

The inmate, Charles Bellon, 40, who is serving a 31- to 62-year sentence at the State Correctional Institution at Benner in Centre County, filed a federal appeal to his conviction and lengthy prison sentence.

The appeal was referred by U.S. District Judge Kim R. Gibson in Johnstown to federal Magistrate Judge Keith A. Pesto, who recommended Bellon’s challenge to his convictions be dismissed, but who also found that the maximum sentence imposed on 10 charges of possession with intent to deliver cocaine was above the maximum allowed under Pennsylvania law.

Bellon received a sentence of 7- to 14 years on each of the charges.

The maximum for the charges is 10 years, according to Pesto’s 17-page opinion, which was issued on Aug. 15.

His recommendation was that Blair County correct the illegal sentences within 120 days.

If the Blair County Court of Common Pleas does not correct the sentences on its own, Pesto is recommending a federal writ be ordered “to release (Bellon) from the judgment of sentence imposed by the Court of Common Pleas at those counts…”

The magistrate’s recommendation immediately raised questions, and Pesto held a follow-up telephone status conference Aug. 27.

Bellon is represented by attorney Todd M. Mosser of Philadelphia, and the prosecution is represented by by Pennsylvania Deputy Attorney General Christopher J. Schmidt.

The questions raised by the attorneys addressed whether Bellon’s minimum sentence on each of the 10 counts must also be lowered to no more than half the new maximum, meaning the highest minimum he could receive on a new 10-year sentence would be five years.

The attorneys also questioned if the new sentence maintains the minimum of seven years with a maximum of 10 years, and whether or not the ordering of a corrected sentence means Bellon has the right to argue for an entirely new sentence.

Pesto, in his latest recommendation, pointed out that state law requires that the maximum sentence be at least twice the minimum sentence. He gave an example, stating a 1- to 5-year sentence is permissible but a 3- to 5-year sentence would not be.

His opinion noted that the prosecution attorney believes the state sentencing code would permit a new sentence of 7 to 10 years on each charge.

Bellon’s attorney argued during the status conference that when a sentencing scheme is vacated, the defendant has the opportunity to seek a lower overall sentence.

Pesto noted that his recommendation does not address these two issues.

“I do not think they are within the scope of (the federal court),” he stated.

A guiding principle is that federal courts should grant the relief in cases like Bellon’s with “the least intervention into the state criminal process,” he stated.

However, addressing the Bellon case, he said the sentencing of a defendant to a maximum sentence not permitted under law “is a clearcut due process violation under the Fourteenth Amendment. …”

The idea of a minimum sentence is a “creature of state law,” Pesto concluded.

He reasoned it will be up to the state courts to resolve the issues in the Bellon case.

The attorneys have until the end of next week to comment on Pesto’s latest ruling, after which the magistrate’s recommendation will go to Judge Gibson for final determination.

Bellon was charged with operating a cocaine distribution ring in Blair, Cambria and Huntingdon counties from 1992 to 2001.

Senior Judge Hiram A. Carpenter of Blair County sentenced Bellon to 31 to 62 years after his Aug. 7, 2006, conviction on 17 offenses.

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