Curtis T. Foose told a Schuylkill County judge on Wednesday that although he pleaded guilty to murdering a Hazleton man in September 2009 in East Union Township, his lawyer told him everything to do.
"Mr. Pellish was whispering in my ear to say 'yes,' " Foose, 28, of Hazleton, testified in an effort to withdraw his guilty plea and go to trial in the death of Anthony Locascio.
However, Thomas J. "Tim" Pellish, Pottsville, Foose's former lawyer, testified that Foose made the decision to plead guilty to third-degree murder and related charges.
"He didn't want to take a chance with a jury," Pellish said.
After Wednesday's 45-minute hearing, Judge Charles M. Miller gave Foose's new lawyer, Claude A.L. Shields, Pottsville, and Assistant District Attorney Robert M. Reedy until March 22 to file briefs outlining their positions.
Foose pleaded guilty Sept. 17, 2010, to third-degree murder, conspiracy, robbery, aggravated assault, theft and simple assault. Miller accepted the plea and, on Nov. 5, 2010, sentenced Foose to serve 47 1/2 to 95 years in a state correctional institution - 20 to 40 for murder, 20 to 40 for conspiracy and 7 1/2 to 15 for robbery.
State police at Frackville alleged Foose, Shane D. Roof, 23, of Palmerton, Jeffrey A. Gombert, 22, of Hazleton, and Andrew T. Tutko II, 22, of McAdoo, conspired to beat Locascio with aluminum baseball bats Sept. 14, 2009, off Old Mill Road near Brandonville.
Police said Foose drove all four to the site and watched while the other three beat Locascio and stole his clothes.
Roof also pleaded guilty Sept. 17, 2010, while Gombert and Tutko pleaded guilty Sept. 22, 2010; all three pleaded guilty to the same crimes that Foose did. Miller sentenced Roof on Nov. 5, 2010, to 47 to 94 years in state prison, and sentenced Gombert and Tutko on Nov. 18, 2010, to 20 to 40 years and 25 to 50 years, respectively, in state prison.
Roof is serving his sentence at SCI/Cresson in Cambria County, Gombert is at SCI/Fayette and Tutko is at SCI/Houtzdale in Clearfield County.
Foose has alleged he should be allowed to withdraw his guilty plea because it was not knowing and voluntary. He testified Wednesday that he did not remember filling out the guilty plea paperwork, although Reedy showed him the papers and he admitted the signatures and initials on the document were his. After that, he said he put down the responses but Pellish told him how to answer the questions.
Foose also denied Pellish's testimony that they discussed the degrees of murder and that the first- and second-degree murder charges would go away if he pleaded guilty.
Pellish, who is now an assistant district attorney, testified that he talked with Foose about the case many times but not about any plea negotiations for a very good reason.
"There were no offers made" by prosecutors until just before the trial was scheduled to start, he said.
At that time, Pellish said, the situation changed.
"Co-defendants (Gombert and Tutko) were going to testify against Mr. Foose," Pellish said. "We discussed his options."
Pellish said there were only two options for Foose: To go to trial or to enter a general guilty plea, which is one without any agreement as to a possible sentence, to third-degree murder.
"He indicated he'd enter a general plea," Pellish said of his client's decision. "I did not know what the sentence would be."
Pellish said he discussed possible sentences with Foose, adding that he thought he would get 25 to 50 years or possibly 30 to 60 years.
Foose has alleged Pellish assured him he would get much less prison time if he pleaded guilty.
Pellish said that prosecutors interviewed Foose, but they did not believe his statements and refused to make him any plea offers based on it. Pellish said Foose made the statements under a grant of use immunity, meaning prosecutors could not use anything the defendant told them against him, but not transactional immunity, which would have barred them from prosecuting him at all.
Foose denied misleading prosecutors.
"Were you lying on your statement?" Shields asked his client.
"No, I was not," Foose answered.Defendant
· Name: Curtis T. Foose
· Age: 28
· Residence: Hazleton
· Crimes committed: Third-degree murder, conspiracy, robbery, aggravated assault, theft, simple assault
· Prison sentence: 47 1/2 to 95 years in a state correctional institution