Serving almost a life sentence for planning and participating in the September 2009 murder of a Hazleton man in East Union Township, Curtis T. Foose testified Tuesday in Schuylkill County Court that his lawyer had assured him he would get much less prison time.
"He told me I'd be getting 20 to 40 years," Foose, 27, of Hazleton, told Judge Charles M. Miller of what Thomas J. "Tim" Pellish allegedly told him before he pleaded guilty to charges stemming from the killing of Anthony Locascio, 21.
However, Pellish, Pottsville, testified he said no such thing to his former client, who is serving 47 1/2 to 95 years in a state correctional institution for his role in Locascio's death.
"I never promised him what the sentence would be," Pellish testified during the 45-minute hearing.
Foose is asking Miller to allow him to withdraw the plea he made to charges of conspiracy, third-degree murder, robbery, aggravated assault, theft and simple assault for helping to kill Locascio on Sept. 14, 2009. Foose pleaded guilty on Sept. 17, 2010, and Miller sentenced him on Nov. 5, 2010.
Miller did not rule on Foose's request at the end of the hearing, instead giving Claude A.L. Shields, Pottsville, the defendant's lawyer, and Assistant District Attorney Douglas J. Taglieri until March 28 to file briefs outlining their positions and the legal support for them.
State police at Frackville alleged that Foose; Shane D. Roof, 22, of Palmerton; Jeffrey A. Gombert, 21, of Hazleton; and Andrew T. Tutko II, 21, of McAdoo, conspired to beat Locascio, 21, of Hazleton, with aluminum baseball bats on 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.
Foose is serving his sentence at SCI/Albion in Erie County, Roof is at SCI/Cresson in Cambria County, Gombert is at SCI/Fayette and Tutko is at SCI/Houtzdale in Clearfield County.
Bound with leg shackles, handcuffs and a belt, and wearing a prison jumpsuit, Foose said Pellish never said sentences could be imposed consecutively, although he did tell him what the maximum possible sentences for each crime could be. Miller imposed three consecutive sentences on Foose: two of 20 to 40 years for conspiracy and third-degree murder and one of 7 1/2 to 15 years for robbery.
"What did you expect to get as a sentence?" Shields asked Foose.
"Twenty to 40 years," Foose answered.
"What did you base that on?"
"What Mr. Pellish told me."
When cross-examined by Taglieri, Foose said Pellish did tell him Miller would decide what the sentence would be, but he thought Pellish would overrule the judge.
"I had confidence in him, I guess," Foose said of his former lawyer.
He said he could not remember precisely when Pellish supposedly told him what the sentence would be, but he was certain is was after he entered his plea.
"I don't remember the exact date," Foose said.
When Taglieri showed him the transcript of his guilty plea hearing, Foose admitted that Miller told him at that time the elements of the crime of conspiracy, and that he said he understood him.
Pellish testified he discussed consecutive and maximum possible sentences with Foose and told him what he thought, based on his experience, the sentences would be.
"I thought the range of the sentences would be 20 to 40, possibly 25 to 50," he said. However, Pellish said that was only what he thought it would be, and he told Foose the sentence could be higher.
Pellish said he discussed with Foose the charges against him, the intent necessary to commit the crimes of conspiracy and homicide, the definition of reasonable doubt and his right to withdraw his plea before sentencing. He said he thought prosecutors had a good case against his client.
"I believe he met all the requirements of the third-degree homicide charge," Pellish said of Foose. "I was not concerned with first-degree murder in this case. He did not participate in the physical beating. The intention was to give the guy a beating."Defendant: Curtis T. Foose
Age: 27
Residence: Hazleton
Crimes committed: Conspiracy, third-degree murder, robbery, aggravated assault, theft and simple assault
Prison sentence: 47 1/2 to 95 years in a state correctional institution