CLEARFIELD – A former trucking company president has filed a civil suit against the Clearfield County District Attorney’s Office.
At a hearing Friday, Timothy L. Kephart argued that he was filing the suit because terms of his plea agreement have not been met. Kephart, who is representing himself, told Senior Judge David E. Grine that he is looking for relief in equity.
He said when he signed the agreement, he expected the terms would be honored. Kephart was testifying via video conference from SCI Laurel Highlands.
According to previous GANT News articles, Kephart pleaded guilty to 36 felony counts of theft by failure to make required deposition of funds and 60 misdemeanor counts of theft by failure to make required deposition of funds.
Kephart was sentenced in July of 2015 by Clearfield County President Judge Fredric J. Ammerman to a total of eight to 32 years in state prison.
Kephart’s sentence was modified in January of 2016 to seven to 20 years in state prison, according to court documents.
He also served time in a federal prison for his involvement in a $3.6 million check-kiting scheme against a bank in Ohio. He had been sentenced to serve 46 months in October of 2013.
In 2015, Kephart was charged in Clearfield County with stealing money from his employees’ pensions and insurance premiums beginning as early as 2011.
According to the Complaint in Civil Action, filed by Kephart June 4, he is alleging that District Attorney William A. Shaw Jr. breached the terms of the plea agreement by failing to amend or provide final grading for all felony and misdemeanor counts subject to restitution, as required.
The complaint alleges that although the district attorney acknowledged and affirmed at the restitution hearing that the restitution had been paid, an accounting of the amounts for each count was not presented to determine final grading.
The complaint alleges that the breach of contract resulted in Kephart not receiving the benefit of the bargain, as Kephart was sentenced and resentenced without the reduction of grading (of the charges) or vacating certain counts.
The complaint alleges that in May of 2015, the district attorney offered Kephart a plea agreement if he would enter guilty pleas to 96 counts of theft by failure to make required deposition of funds. Kephart rejected the offer.
The district attorney then offered an amended plea agreement, which Kephart agreed to. However, Kephart is claiming that the district attorney misrepresented information in the plea agreement, which resulted in an agreement that caused Kephart to be sentenced under false pretenses and bias.
The complaint is asking the court to enter orders terminating the plea agreement between Kephart and the district attorney’s office, rendering the agreement null and void and return Kephart to the same position he was in before he entered the plea, as well as any other relief the court deems appropriate to remediate the actions of the district attorney and the impact of those actions of Kephart.
Shaw was not present in the courtroom Friday, but he is being represented by Attorney Kim Kesner.
Kesner said there is no legitimate theory supporting Kephart’s complaint or request for relief. Kesner said any allegations of prosecutorial misconduct should be handled in criminal court.
He added that any plea agreements no longer exist, once a sentence has been entered by the court. He said a sentence cannot be rescinded once it has been entered.
He said as the issues Kephart is raising pertain to relief, there is nothing the court can do. Kesner said at this point, the court has no choice but to dismiss the lawsuit and that Kephart should address these issues in a criminal suit.
Following the hearing Friday, Grine ordered both parties to present written briefs on their arguments within 30 days.
According to court documents, Kephart, through his attorney Craig Cooley of Pittsburgh, has filed a Post-conviction Relief Act petition. The petition claims ineffectiveness of counsel by Kephart’s original attorney, Chris Pentz.
During testimony for the PCRA petition March 6, Kephart claimed Pentz filed a motion asking for more detailed information on the numerous counts the court was charging Kephart with, but Kephart said he did not see any of this information prior to signing a plea agreement in June of 2015.
At the March hearing, Kephart presented a detailed list of insurance payments from employees that were submitted to the insurance company.
This information indicated that 18 of the counts of failure to make required disposition of funds that were rated as first-degree misdemeanors, when they should have been third-degree misdemeanors due to the amount of money involved.
Kephart testified that after receiving more information in July of 2015, he told Pentz that there were individuals on the list that weren’t even covered by the company plan.
Kephart reviewed information during the hearing showing that the insurance premiums for the company were paid in full through June of 2013.
Kephart testified that had he been aware of this information in June of 2015, he would not have sighed the plea agreement. Kephart testified that he had also been told that it was not possible to withdraw his plea.
At the March hearing, Kephart said his transfer to a federal prison made it difficult to communicate with Pentz.
Kephart also claimed that he had told Pentz he wanted to be in court for the resentencing hearing, and Pentz was supposed to make arrangements for a video conference call, but this did not happen.
Kephart testified that in late January of 2016, he received correspondence from Pentz with the information on the result of the resentencing hearing and stating that there was nothing more he could do for Kephart.
Briefs on the PCRA petition are due in court by Sept. 13.