Judge defends sentence for waste dumper

Judge defends sentence for waste dumper by Observer Reporter, October 3, 2012
WAYNESBURG – Greene County Judge Farley Toothman, in an opinion filed Friday to support his sentencing of Robert Allan Shipman, claims the sentence of probation complies with the law and is within the court’s discretion. The opinion was prepared in response to a notice of appeal filed with Superior Court by the state attorney general’s office, which maintains the sentence is too lenient given circumstances of the case. Shipman was accused of illegally dumping drilling waste water, 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 waste water 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. In its concise statement filed after its notice of appeal, it claimed the court abused its discretion by imposing a sentence at the low end of the mitigating range and said the sentence is unreasonable given circumstances of the case. In his opinion, Toothman stated a judge has “broad discretion” in sentencing, but must comply with rules and laws governing sentencing proceedings. “As long as the trial court’s reasons demonstrate that it weighed the sentencing guidelines with the facts of the crime and the defendant’s character in a meaningful fashion, the court’s sentence should not be disturbed,” he said, quoting case law. In order to show an abuse of discretion, the appellant would have to establish the court ”ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” Toothman claims the sentence meets the required standards and is within the state’s sentencing guidelines. “We applied the rules of criminal sentencing procedure and fashioned a sentence that would carry out the goals of both the retributive and punitive aspects of a sentence, as well as promote the rehabilitation of Shipman,” he wrote. Shipman had no past criminal record, was cooperative, remorseful and promptly paid restitution, fines and costs, Toothman said. The court also recognized Shipman’s individual and family history, evidence of his character and the fact he would never again receive a DEP permit.

In support of his sentence, Toothman further questions the factual basis of the plea agreement and cites the state’s failure to consistently prosecute polluters. At the sentencing hearing, state Department of Environmental Protection witnesses acknowledged they had no evidence of any specific pollution by Shipman, Toothman said. “Coupled with the commonwealth’s withdrawal of 149 counts against Shipman, we consider that the guilty plea agreements were not factually based, and possibly coerced,” Toothman wrote. The commonwealth apparently wanted Shipman jailed to deter others from polluting waterways. However, “history proves this motive wrong and improper,” Toothman said. DEP witnesses testified they had not criminally prosecuted an environmental crime in Greene County in 38 years.

It is common knowledge the quality of Greene County waterways has been impacted by among other things mining, natural gas drilling, power plants and sewage, Toothman said. Testimony presented at the hearing indicated DEP relies “almost entirely on ‘self reporting’ by its permit holders for enforcement,” he said. Shipman failure to police himself was not unique, he added. “It can be argued that DEP and the self-policing beneficial permit-holders are also responsible for creating a culture tolerating pollution as a result of decades of a lack of criminal enforcement,” Toothman wrote. “It would therefore be patently unfair to Shipman, and an abuse of our discretion, to impose upon Shipman alone the weight of this decade of dirty water.” [Emphasis added]

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