Commonwealth v. Radecki

180 A.3d 441

COMMONWEALTH of Pennsylvania, Appellee

v.Thomas RADECKI, Appellant

No. 1558 WDA 2016

Superior Court of Pennsylvania.

Argued August 15, 2017

Filed February 21, 2018

James A. Salemme, Butler, for appellant.

Gregory J. Simatic, PA Office of Attorney General, Pittsburgh, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., OLSON, and STABILE, JJ.

OPINION BY STABILE, J.:

Appellant Thomas Radecki appeals from the September 21, 2016 sentence entered in the Court of Common Pleas of Clarion County ("trial court"), following his jury convictions for nine counts of unlawful administration, dispensing, delivery, gift, or prescription of a controlled substance by a practitioner, one count of criminal conspiracy, one count of dealing in the proceeds of illegal activity, and one count of corrupt organizations.¹ Upon review, we affirm.

The facts and procedural history of this case are undisputed.² Briefly, Appellant, a psychiatrist with medical offices in Clarion, Seneca, Kane, and DuBois, started and operated an office-based drug treatment program. Appellant's practice eventually expanded to approximately 2000 patients, many of whom were addicted to heroin or pain killers. Some of Appellant's patients were poor, young women who wanted drugs from him to nurse their addiction. Appellant, however, exploited their addiction and financial status by cultivating sexual relationships with them in exchange for free medication, free housing, office jobs, and forgiveness of account balances. Appellant has a child with one of these women.

To treat patients, Appellant prescribed Suboxone or Subutex. Appellant also diagnosed many patients with psychiatric disorders and depression and treated them with Ritalin and Adderall. The combination of Suboxone or Subutex with Ritalin and Adderall was contraindicated. Law enforcement was alerted to Appellant's practice based on the combination of medications and the sheer volume of doses that Appellant was prescribing his patients. The United States Drug Enforcement Administration ("DEA") and the Pennsylvania Office of Attorney General ("OAG") initiated an investigation of Appellant's practice, resulting in the executions of numerous search warrants at his practice locations and residence.

The OAG convened a statewide investigating grand jury in connection with its probe. On July 29, 2013, the grand jury issued Presentment Number 46,³ recommending that criminal charges be brought against Appellant. On August 20, 2013, the OAG charged Appellant with, inter alia , multiple violations of the Controlled Substance, Drug, Device and Cosmetic Act, criminal conspiracy, dealing in the proceeds of illegal activity, and corrupt organizations.

The case proceeded to a jury trial, at which both sides presented testimony. Following a ten-day trial, a jury found Appellant guilty of nine counts of unlawful administration, dispensing, delivery, gift, or prescription of a controlled substance by a practitioner, one count of criminal conspiracy, one count of dealing in the proceeds of illegal activity, and one count of corrupt organizations.⁴

On June 3, 2016, the trial court sentenced Appellant to an aggregate term of 133 to 266 months' imprisonment. Specifically, with respect to the nine counts of unlawful administration, dispensing, delivery, gift, or prescription of a controlled substance by a practitioner, the trial court sentenced Appellant as follows:

1. Count 5 as to [M.M.], not less than 12 months nor more than 24 months,

2. Count 6 as to [C.Y.], not less than 12 months nor more than 24 months,

3. Count 7 as to [A.A.], not less than 12 months nor more than 24 months,

4. Count 10 as to [T.C.], not less than 12 months nor more than 24 months,

5. Count 11 as to [A.C.], not less than 9 months nor more than 18 months,

6. Count 12 as to [J.D.], not less than 9 months nor more than 18 months,

7. Count 13 as to [R.P.], not less than 9 months nor more than 18 months,

8. Count 15 as to [A.Z.], not less than 12 months nor more than 24 months, and9. Count 16 as to [C.M.], not less than 9 months nor more than 18 months.

Sentencing Order, 6/3/16, at 2–3. The trial court sentenced Appellant to 9 to 18 months in prison for criminal conspiracy, 12 to 24 months in prison for dealing in the proceeds of illegal activity, and 16 to 32 months in prison for corrupt organizations. The sentences on all twelve counts were ordered to run consecutively to each other. Id. at 4. The trial court also imposed fines and costs.

On June 10, 2016, the Commonwealth filed a motion for modification of sentence regarding costs and fines. The Commonwealth claimed that it erred in informing the trial court at sentencing that funds which had been seized from Appellant in civil forfeiture could be applied toward a fine as part of Appellant's sentence in his criminal case.

On June 13, 2016, Appellant filed post-sentence motions, arguing, inter alia , that the trial court abused its discretion in sentencing him in the aggravated range, "running all sentences consecutive[ly] as they were part of the same plan and scheme with no intervening interrupting conduct," and imposing an aggregate term of 11 to 22 years' imprisonment. Appellant's Post–Sentence Motions, 6/13/16, at ¶ 2. On July 5, 2016, Appellant's trial counsel, John P. Troese, filed a motion for continuance, which the trial court granted on July 11, 2016. In so doing, the trial court continued the hearing on Appellant's post sentence motions to August 25, 2016.

On August 1, 2016, Attorneys Alexander H. Lindsay, Jr. and J. Andrew Salemme, entered their appearance on Appellant's behalf. On August 17, 2016, Appellant's new attorneys filed a motion for continuance, arguing:

8. For the several reasons that follow, counsel now requests that the [c]ourt grant a second continuance to permit new counsel to familiarize himself with the issues raised by trial counsel and to allow for amendment of the post sentence motions to include allegations of ineffective assistance of counsel. The amended post sentence motion will include a waiver of PCRA rights by [Appellant].

9. As the court is aware, trial transcripts were ordered by trial counsel and those transcripts are not yet available. The trial transcripts are indispensable to counsel in preparing for argument on the several issues raised in the post sentence motion. Counsel still has not been provided with a completion date.

10. Counsel has been meeting with [Appellant] at the Clarion County Jail as well as consulting with trial counsel and expects to file the amended post sentence motions within the next 10 days.

Second Motion for Continuance, 8/17/16, at ¶¶ 8–10 (unnecessary capitalization omitted) (sic). On August 19, 2016, the trial court denied the motion for continuance.

On August 23, 2016, Appellant's trial counsel, John P. Troese, filed a motion to withdraw his appearance. On August 24, 2016, the trial court denied trial counsel's withdrawal motion, reasoning:

The Comment to [Pa.R.Crim.P.] 120 advises the court to consider various factors, including whether a change in attorneys will delay the proceedings or prejudice [Appellant], particularly concerning time limits, and whether [Appellant] has failed to meet his financial obligations to pay for Attorney Troese's services or there is a written contractual agreement terminating representation at a specific stage in the proceedings. Also, the Comment provides, "[i]f a post-sentence motion is filed, trial counsel would normally be expected to stay in the case until disposition of the motion under the post-sentence procedures adopted in 1993. See Pa.R.Crim.P. 704 and 720.

In considering these factors, the court has first determined that a change in attorneys from Attorney Troese to Attorney Lindsay will delay the argument on the post-sentence motions scheduled for tomorrow because Attorney Lindsay has stated in his motion for continuance that trial transcripts are indispensable to him in preparing for argument on the motions and he does not know when the transcripts will be completed. It appears unlikely that Attorney Lindsay will be able to receive and review transcripts from the lengthy trial and prepare for argument and the attorneys will be available to present their arguments and the court will have sufficient time to decide the motions before the expiration of the 120–day time period set by Rule 720(B)(3)(a). If the court cannot meet the deadline established by Rule 720, [Appellant] may be prejudiced. Further, Attorney Lindsay has stated in his motion for continuance that he will be filing amended post-sentence motions, which require review and consideration by the attorneys for the Commonwealth, and may cause further delay.

In addition, [Appellant] has not demonstrated a need to change attorneys in order to effectively address the post-sentence motions. Attorney Troese should be well prepared to argue [Appellant's] positions on [Appellant's] and Commonwealth's post-sentence motions tomorrow because he represented [Appellant] during all pre-trial, trial and sentencing proceedings and he prepared [Appellant's] post-sentence motion. The only indication that [Appellant] believes Attorney Troese should not argue the motions is the statement in Attorney Lindsay's motion for continuance that he desires to amend the post-sentence motion to include allegations of ineffective assistance of counsel. [Appellant] has not made any specific allegations of ineffectiveness. [Attorney] Lindsay has not filed an amended post-sentence motion and this court has not determined whether [Appellant] may raise ineffectiveness claims in a post-sentence motion.

In considering the additional factors in the Comment to Rule 720, there is no indication [Appellant] has failed to meet his financial obligations to pay for Attorney Troese's services or there is a written contractual agreement terminating representation at a specific stage in the proceedings.

Trial Court Order, 8/24/16 (unnecessary capitalization omitted).

On August 25, 2016, Appellant's...