LEWISTOWN - A McVeytown man serving a 15 to 40 year sentence for attempted homicide was back in court on Friday trying to convince President Judge Timothy S. Searer to throw out his guilty plea.
Timothy Smith, 43, pleaded guilty in March 2009 to attempted homicide and sexual assault, several other charges including rape, aggravated assault, burglary and terroristic threats were subsequently dismissed under a plea agreement.
Smith's charges stem from an incident in Strodes Mills on Jan. 4, 2008, in which police contend the defendant sexually assaulted a 34-year-old woman, then shot her and then turned the gun on himself.
Smith filed a Post Conviction Relief Act petition with the Mifflin County Court of Common Pleas, after the Pennsylvania Superior court dismissed an appeal he filed which dealt with similar issues. Smith's appeal with the Superior Court was dismissed because the defendant filed after the deadline, which he contends would not have happened had he been fully aware of his appellant rights.
Smith's PCRA petition addresses a number of issues he said led him to plead guilty to the crime, of which he claims to be innocent. Smith requests the guilty plea be thrown out so he can have his case heard by a jury.
On Friday Smith testified he pleaded guilty to the charges because his former attorney Shane Kope was convinced that a recorded 911 tape of the incident, would have been enough to persuade a jury he was guilty.
Smith testified Kope did not provide him with all the case material he requested until months after he pleaded guilty to the crime, this included the 911 tape.
Kope testified he did produce the "meat" of the case material for his client prior to the guilty plea, including a transcript of the 911 tape.
"I would have never entered a guilty plea if I heard that tape," Smith said.
"That tape has been altered or edited ... something was done to the tape," Smith added.
Smith also contends he pleaded guilty to the crime because Kope told his family it was the best option given the weight of the evidence.
"I think Kope used them to get me to plea," Smith said.
Smith's family, including his mother Anna Smith, his father Irvin Smith and his sister Vicki Nickel all testified on Friday that they told Smith to take the plea agreement worked out between Kope and Mifflin County District Attorney Steve Snook.
Smith's family members testified they were told by Kope, that Smith would be eligible for parole after 10 years. Kope disputes this claim and contends he told the family that based on his "opinion," he believed Smith could be paroled after his minimum sentence, which was 15 years, if Smith behaved himself while he was incarcerated and completed any required programs.
Smith also testified he felt Kope was unprepared to take the case to trial and had not properly prepared a defense. Kope testified he was prepared to take the case to trial, however he felt there was the very real possibility his client would be found guilty and thus face a much lengthier sentence if convicted.
"My opinion was that if it had gone to trial, no jury would have convicted me," Smith said was his conclusion when months later after his plea, he had acquired the full case file.
"I kept telling Mr. Kope I had questions I wanted him to ask, he never asked what I wanted him to ask," Smith said.
"Do you think that had he been prepared you would have won the case?" Smith's present attorney Matthew McClenahen asked.
"Yes I do," Smith replied.
When the issue of Smith's post conviction rights came up, DA Snook rehashed the details of the court proceedings on March 3, 2009, the day Smith pleaded guilty.
Snook said the court took great care in explaining to Smith his appeal rights.
"This is what you call buyer's remorse," Snook said.
March 3, 2009
On the day Smith's case was scheduled for trial, dozens of potential jurors waited in court room one in the Mifflin County Court of Common Pleas, while down the hall in court room two, Searer was presiding over the guilty plea and sentencing for the defendant.
After Searer entered the court room that morning there were some back and forth questions for the attorneys, as well as Smith, before Searer accepted the plea agreement.
Snook gave a brief synopsis of the day of the shooting for the court record, after which Searer asked the defendant if he understood his rights and was entering the plea, knowingly and voluntarily.
Searer also informed the defendant that his rights on appeal were very limited if he were to plead guilty.
Smith said he understood his rights and wanted to plead guilty to the two charges of attempted homicide and sexual assault.
Other than the occasional answer of "yes," when asked questions by Searer, Smith had little to say and sat quietly with his hands folded on top of a table.
At one point, Smith was asked by Searer if he understood that it was the prosecution's burden to proof him guilty.
"Yup, I think she's been through enough," Smith said of the victim.
After court proceedings ended, Kope commented briefly on the case and said that "in light of new evidence, specifically the 911 tape" the plea agreement was a "fair deal," and the sentence was a "fair sentence."
Snook echoed that sentiment and said the "911 tape made this case."
"The reason (Smith) pled, was that he understood that much of this event was recorded by 911," Snook said of the recording that captured much of the altercations in the victims mothers house.
"Mr. Smith was fond of saying that the truth will come out, well the truth came out today," Snook added.
Snook also said that the only reason the victim and Smith survived was because of the quick response of emergency services personnel.
"One of those cases where the EMS and medical people saved her life," Snook said.
Snook also offered up praise to those involved in the investigation.
"Everybody did a good job in the prosecution of this case," he said.
Break Out Box
Jan. 4, 2008
According to court documents, police were summoned to the residence in Strodes Mills after a 911 call was placed from 409 Strodes Run Road.
According to court documents, police were informed by the victim's mother that her daughter had been shot and remained in the home.
Police reports issued at the time of the incident allege that Timothy Smith pointed a long gun at a state trooper who was approaching the residence.
Moments later, the officer heard a gun shot and Smith could be seen lying on the floor of the home, police said. The victim then crawled from the home and fell to the sidewalk, police said.
Both Smith and the female victim were transported to Altoona Regional Health System Hospital for treatment and were eventually released.
