CLEARFIELD – The case against a DuBois woman who was found guilty of aggravated assault by vehicle while driving under the influence in March was back in Clearfield County Court.
Kathryn Bembenic, 31, 118 Wilson Ave., DuBois, was also found guilty of DUI and recklessly endangering another person after a trial. In April, she was sentenced by Judge Paul E. Cherry to 11.5 months to two years less one day in the county jail and five years consecutive probation for the aggravated assault charge and to a consecutive period of 72 hours to six months in jail for the DUI charge.
She was ordered to pay restitution of more than $38,800 plus an anticipated fee of $100,000 to the victim for future hip replacement surgeries.
The charges stem from an accident in Sandy Township on Oct. 14, 2012 when Bembenic’s vehicle struck another vehicle head-on. The driver of the second vehicle suffered injuries to her hip that required surgery.
Bembenic appeared to be under the influence and failed field sobriety tests. Her attorney, Ronald Collins, claimed the accident occurred because she was trying to work the heater in an unfamiliar vehicle that had no panel lights.
Collins filed several post sentence motions in the case, which were recently discussed during motions court.
Two of the motions were granted by Cherry. The first was a motion to vacate the sentence for the DUI charge, which Collins argued should merge with the aggravated assault by vehicle while DUI charge for sentencing purposes. Cherry agreed with this and vacated the DUI sentence of 72 hours to six months in jail. He also agreed to set bail for Bembenic of $50,000, straight while her appeals are pending.
In the other motions, Collins asked for an acquittal on the aggravated assault charge because the only evidence given of her bad driving was that she drifted over the centerline. First Assistant District Attorney Beau Grove responded by pointing out that when Bembenic crossed over into the other lane of traffic she struck the other vehicle head-on.
Collins also is asking for a new trial stating that the victim’s testimony on her treatment and future surgeries is hearsay and noted there was no medical testimony on that.
He also asked Cherry to vacate the amount of restitution for the anticipated medical expenses of future hip surgeries. He said there was nothing on record to verify this amount.
He questioned the recklessly endangering another person charges, stating that the level of recklessness in a DUI is different.
Collins also asked Cherry to reconsider the sentence on the aggravated assault charge, stating the standard range for this is six to 14 months. He said she has no prior record, and there was only one injury and it was “on the lower end” of injuries for this type of case. Collins noted that the victim was not wearing a seatbelt and if she had, her injuries could have been less severe.
He reviewed the circumstances of that night: Bembenic was out drinking with friends and then went to a residence. The plan was for all of them to spend the night there. She continued to drink and went to sleep.
When she woke up, she was alone with the man who lived at the residence who she didn’t know well. Her friends had all left. She felt uncomfortable and this led her to get behind the wheel that morning.
Collins argued that these circumstances should put her at the lower end of the sentencing range.
Cherry said because of the number of letters he received and because of the people who supported her, he chose to give her a county sentence and a sentence with the minimum in the middle of the standard range.
The commonwealth also filed a motion for the judge to reconsider the sentence and make it a state prison sentence. Grove explained they filed this at the victim’s request because Bembenic is trying to avoid taking responsibility as all these motions show.
“She made a bad decision and needs to suffer the consequences,” he said, asking the judge to deny the defense motion to lower her sentence.
Cherry ordered each side to provide briefs on the issues by June 30.