By Karen Hall
A routine sentencing hearing was turned upside down Wednesday afternoon with the revelation that the defendant has hired a new lawyer.
A jury found Phillip Burgess, 33, of Lewisburg, guilty of first-degree murder, attempted first-degree murder, and aggravated assault after a two-and-a-half day trial in June, and he was due to be sentenced this week. He was represented by Public Defenders Michael Collins and Bill Harold.
A pre-sentence report for Burgess was prepared, as customary. In the course of doing this, it was discovered that Burgess has continued to draw a disability payment of about $1,000 per month during the 12 months he has been in jail, and his stepmother has been managing the money.
"We filed a motion to withdraw, based on what we learned in the pre-sentence report," said Donna Orr Hargrove, the elected head of the 17th Judicial District Public Defender's Office. "He's not indigent, and hasn't been indigent. We will ask the court to assess an attorney fee," she continued. "The taxpayers deserve some reimbursement."
"This is a unique situation," said Circuit Court Judge Robert Crigler.
What annoyed Hargrove even more was the fact that Burgess, through a family member, has retained a private lawyer for his motion for a new trial, appeal, and so forth.
"He privately met with him without consulting us," Hargrove exclaimed. "I take exception to him talking to my client.
"This is awful - wrong - a wrong way to use the taxpayer's money," she continued. "He's signed a contract and made payments to an attorney."
An examination of the Affidavit of Indigency in Burgess' file showed he did note a disability payment as a source of income, but Hargrove said, "In most cases those payments are stopped" and Crigler added, "They forfeit disability when they are convicted."
Local attorney Rob Dalton was summoned to the courtroom, and confirmed, "Yes, we are retained by a third party," meaning someone is paying him to represent Burgess.
"It's not a good idea for someone to have two different lawyers," Crigler said, trying to decide how to handle Burgess' sentencing.
"I have been hired for the appeal," Dalton said, "But I would be happy to do this," meaning the sentencing.
In order to represent his new client at the sentencing hearing, Dalton needs to read the transcript of the trial.
This led to a new question. Who will pay for the transcript? They are charged at about $4 per page, and a two-day trial can cover more than 700 pages.
Crigler decided to hold an indigency hearing for Burgess on his next regular court date, Aug. 22, to decide who pays for the transcript.
"Indigency continues until the court revokes it," Dalton said.
Another problem with a transcript caused postponement of the other sentencing hearing scheduled for Wednesday.
Attorney Hershel Koger asked Crigler to move the date for Kimberly Wentzel's sentencing hearing to Sept. 5, admitting he was only a quarter of the way through a lengthy transcript, and Crigler was glad to comply. Wentzel was Dalton's client, but he was allowed to withdraw from the case after she was convicted, and Koger was appointed to replace him.