By Joe Pinchot
Herald Staff Writer
DELAWARE TOWNSHIP —
A Delaware Township man who sought a sentence reduction to try to overcome a backlog in the state prison system’s drug and alcohol treatment program has struck out.
Michael D. McCann, 30, pleaded guilty in 2010 in four cases – three filed by Pymatuning Township police and one by Hempfield Township police – on charges of theft, retail theft and possession of drug paraphernalia.
After violating his probation on his first sentence, McCann was resentenced on Jan. 20, 2012, to 2è to 5 years in state prison, and Mercer County Common Pleas Court Judge John C. Reed recommended that McCann complete the Drug and Alcohol Therapeutic Community Program.
McCann was eligible for a good-behavior program that would drop his minimum sentence to 22è months, but found out that he would not be paroled until he had completed the treatment program, and that he would not be enrolled in the program until he was nearing the good-behavior program minimum sentence.
“However, if (McCann’s) minimum sentence and corresponding (good-behavior) sentence were reduced, he would be eligible for earlier (admittance) into the therapeutic program thereby giving rise to the possibility that he would be paroled at an earlier date,” Reed wrote in an opinion for state Superior Court.
McCann testified that his “sole purpose” for filing a petition under the Post Conviction Relief Act was “a sentence modification for the purpose (of) obtaining an earlier parole date,” Reed said.
In order to make this argument, McCann filed the relief act petition attacking the effectiveness of his trial attorney for failing to appeal what McCann described as an excessive sentence.
McCann did not file a direct appeal of his sentence, but argued “that he was expecting trial counsel to visit him in prison after the resentencing hearing to discuss the ramifications of the trial court’s sentences,” according to the Superior Court opinion filed Jan. 15.
No visit meant no direct appeal.
McCann “does not argue that he reasonably demonstrated to counsel that he was interested in appealing,” said Judge Judith Ference Olson. “Thus, as (McCann) has not met his burden of demonstrating he was prejudiced by counsel’s failure to consult regarding a nonfrivolous ground for appeal, we find that trial counsel was not ineffective.”
He also “has not identified any facts within the record which suggest that (Reed) exceeded (his) authority,” the court said.