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Rond Roberts Mcbride v. Don Cahoone et al

October 17, 2011


The opinion of the court was delivered by: Legrome D. Davis, J.


I. Factual Background and Procedural History*fn1

On January 11, 2010, Plaintiff Rond Roberts McBride ("Plaintiff" or "McBride") pled guilty to identity theft under 18 Pa. C.S.A. § 4120(a) in the Delaware County Court of Common Pleas. (Doc. No. 23 ¶ 23). Judge James F. Nilon sentenced McBride to a "Min/Max" term of incarceration of three (3) to twenty-three (23) months, followed by two (2) years of probation. (Doc. No. 23 ¶ 24). Judge Nilon ordered that McBride receive seven (7) days credit for time served and serve the remaining eighty-three (83) days of his sentence on house arrest with electronic monitoring pursuant to Defendant Delaware County Office of Adult Probation and Parole Services' ("APPS") Electronic Monitoring ("EM") Program (Doc. No. 23 ¶ 25).

Before McBride decided to plead guilty, Judge Nilon repeatedly assured McBride and his attorney, Ms. Denise McCrae, that McBride would not go to jail or prison if he accepted the Government's plea offer:

THE COURT: The offer that they have extended to you is 3 to 23 months, with three months on electronic monitoring so you don't go to jail, you wear the bracelet, and after three months, they take the bracelet off...

(Doc. No. 15, at 10:10-14).

THE COURT: You're looking at essentially no prison time under the offer to substantial prison time if you're convicted...

(Doc. No. 15, at 15:3-7).

THE COURT: Three to 23 months is the period of incarceration.

You're not going to have to go to jail because they're going to let you serve your minimum on electronic monitoring. Once they finish with the electronic monitoring, for the remainder of the 23 months, which would be 20 months, you are considered on parole... (Doc. No. 15, at 17:20-18:2).

MS. MCCRAE: For the record, Your Honor, but no jail time. THE COURT: But no jail time. (Doc. No. 15, at 18:12-15).

THE COURT: If there is a question in your mind as to whether or not you can win this case, then you have to give serious consideration to the offer because it doesn't carry any jail time with it.

(Doc. No. 15, at 20:2-7).

Additionally, McBride expressed concern about caring for his mother while serving his sentence. Judge Nilon told McBride that APPS should work with him to make the appropriate arrangements, but Judge Nilon would give McBride a hearing on the issue if McBride could not work it out with APPS.

MR. MCBRIDE: Yeah. Well, I got to leave the state at times.

THE COURT: Yeah. Well, you have to talk to your probation officer or parole officer about that. But I think arrangements could be made. They'll work with you.

MR. MCBRIDE: mother...

THE COURT: So you can visit your mother?

MR. MCBRIDE: I got to take her back -- she got [inaudible] so I go back and forth.

THE COURT: I'm sure arrangements can be made.

MR. MCBRIDE: That's why I want to get this over with.

THE COURT: You can work with the person assigned to your case from Adult Probation and Parole. Okay?


THE COURT: And if -- and if they refuse to allow that, then you could file a petition through the Office of the Public Defender and I would give you a hearing on it.

MR. MCBRIDE: Okay. (Doc. No. 15, at 58:13-59:18).

McBride was scheduled to have the EM equipment hooked up ("hook up appointment") on January 27, 2010, but he called Defendant Don Cahoone, his probation officer, to reschedule because he was in the hospital due to medical problems. (Doc. No. 23 ¶¶ 28-29). On February 3, 2010, McBride informed Cahoone that he was out of the hospital, and Cahoone scheduled a new hook up appointment for February 20, 2010. (Doc. No. 23 ¶¶ 30-31). On February 19, the day before the new hook up date, McBride told Cahoone that he had to undergo several medical tests, including an MRI, on February 20, and Cahoone informed McBride that he should not get hooked-up because the EM anklet cannot be worn during an MRI procedure. (Doc. No. 23 ¶ 32). Cahoone again rescheduled McBride's hook up appointment, this time for March 4, 2010. (Doc. No. 23 ¶ 33). Despite McBride's apparent health-related issues, Cahoone told McBride that this was "the last time" Cahoone would reschedule the appointment. (Doc. No. 10 Ex. D).

McBride spoke with Cahoone on March 4, 2010, at which time McBride told Cahoone that he could not attend the scheduled hook up appointment because he was in the hospital with his mother, who was having surgery. (Doc. No. 23 ¶ 34). Cahoone then requested that a bench warrant be issued for McBride's arrest as provided in the EM Violation Policy (Doc. No. 23 ¶ 35; Doc. No. 10 Ex. G, Chapter 7.18). Judge Chad F. ...

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