Opinion
3054 Disciplinary Docket 3 25 DB 2024
07-16-2024
OFFICE OF DISCIPLINARY COUNSEL, Petitioner v. LESLEY RAE CHILDERS-POTTS, Respondent
Thomas J. Farrell, Chief Disciplinary Counsel Daniel S. White Disciplinary Counsel Lesley Rae Childers-Potts, Esquire Carson B. Morris, Esquire Counsel for Respondent
Attorney Registration No. 92348 (Blair County)
Thomas J. Farrell, Chief Disciplinary Counsel
Daniel S. White Disciplinary Counsel
Lesley Rae Childers-Potts, Esquire
Carson B. Morris, Esquire Counsel for Respondent
ORDER
PER CURIAM
AND NOW, this 16th day of July, 2024, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board, the Joint Petition in Support of Discipline on Consent is granted, and Lesley Rae Childers-Potts is suspended on consent from the Bar of this Commonwealth for a period of two years. Respondent shall comply with the provisions of Pa.R.D.E. 217 and pay costs to the Disciplinary Board. See Pa.R.D.E. 208(g).
JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT UNDER RULE 215(d). Pa.R.D.E.
Petitioner, the Office of Disciplinary Counsel (hereinafter "ODC"), by Thomas J. Farrell, Chief Disciplinary Counsel, and Daniel S. White, Disciplinary Counsel, and Respondent, Lesley Rae Childers-Potts, Esquire, by and through, Carson Morris, Esquire, file this Joint Petition in Support of Discipline on Consent under Rule 215(d), Pa.R.D.E., and respectfully represent as follows:
1. Petitioner, whose principal office is located at Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, P. O. Box 62485, Harrisburg, Pennsylvania 17106-2485, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to------ prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Rules.
2. Respondent, Lesley Rae Childers-Potts, was born in 1976. She was admitted to practice law in the Commonwealth of Pennsylvania on April 12, 2004.
3. Respondent has no history of discipline.
4. Respondent's attorney registration mailing address is Fleming Law Office, PLLC, 1401 9th Avenue, Altoona, Pennsylvania 16602.
5. Respondent is presently on active status.
6. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.
SPECIFIC FACTUAL ADMISSIONS
7. At all times material hereto, Respondent served as District Attorney of Bedford County. On February 10, 2023, Respondent resigned from such position.
In the matter of Commonwealth v. Charles Victor McCahan
8. On or about January 19, 2022, Ouita McCahan passed away.
9. Ms. McCahan's death was investigated by the Saxton Borough Police Department.
10. On May 5, 2022, the Pennsylvania State Police, Bureau of Forensic Services, Forensic DNA Division issued a DNA Analysis Lab Report indicating that, inter alia:
6 A Y chromosome DNA profile, consistent with a mixture, was obtained from the swabs of the left hand fingernail clippings from Ouita McCahan (Item Q6).
A Y chromosome DNA haplotype from an unidentified individual was obtained from the major component of this DNA mixture.
If a direct Y chromosome DNA comparison to an individual is desired, please submit a blood sample in a lavender top tube or a buccal collector from the individual to the laboratory.
11. On or about June 17, 2022, Charles McCahan, Ms. McCahan's son, was arrested by the Saxton Borough Police Department and charged with, inter alia, criminal homicide in connection with Ms. McCahan's death. This matter was thereafter docketed in the Court of Common Pleas of Bedford County at CP-05-CR-0000280-2022 (hereinafter the "McCahan Proceedings").
12. Because Mr. McCahan was charged with criminal homicide, he was ineligible to be released on bail. PA CONST Art. 1, § 14. Accordingly, beginning in June of 2022, Mr. McCahan was detained at the Bedford County Prison pending disposition of the McCahan Proceedings.
13. Despite receiving the May 5, 2022 DNA Analysis Lab Report set forth in paragraph 10 supra, Respondent failed to request that officers of the Saxton Borough Police Department obtain a DNA sample from Mr. McCahan to compare with the DNA profile of the "unidentified individual" set forth in such report.
14. In or before February of 2023, the Pennsylvania Office of Attorney General assumed the prosecution of the McCahan Proceedings.
15. On February 13, 2023, an evidentiary hearing was conducted in the McCahan Proceedings, at which time Frederick James Chadwick, III, Chief of the Saxton Borough Police Department, testified that, inter alia:
Q. Okay. So is it correct to say that as of right now there is not a DNA analysis between the defendant, Charles McCahan, and what was collected off of Ouita McCahan?
A. That's correct.
Q. Okay. At a certain point in time the investigation, prosecution of this case was switched to the Office of Attorney General; is that correct?
A. That is correct.
Q. Okay. And after we got involved for lack of a better term did
we request that you obtain a sample from Mr. McCahan?
A. That is correct.
Q. And what am I talking about?
A. A buccal swab from Mr. McCahan to which we applied, we prepared a search warrant and applied for it, obtained it, obtained his buccal collector, and transported it to the lab.
Q. So that. I'm sorry.
A. For testing.
Q. Okay. So that the test can be done between what was collected from the decedent and Charles McCahan?
A. That is correct.
Q. Have you yet, as we're here today, have you received those results?
A. No, I have not.
Q. Are you awaiting those results?
A. We are awaiting those results.
Q. When did you seek this buccal swab from Mr. McCahan?
A. Two weeks ago.
Q. Just two weeks ago?
A. Yes.
Q. But these charges were filed June 17th of 2022?
A. That's correct.
Q. And what's the anticipatory time line to get these results?
A. A month or longer.
Q. A month or longer? So you really don't know?
A. No. I don't really know.
Q. And when, with all the other forensics that were conducted, did you find any other direct evidence pointing to Mr. McCahan as the perpetrator of the death of Ms. McCahan, direct evidence?
A. From direct evidence?
Q. Yes.
A. No.
Q. So is it fair to state that as of right now you have a statement only for Mr. McCahan indicating that he knew his mother was deceased?
A. That is correct.
Q. That's all?
A. At this point.
16. On March 2, 2023, the Pennsylvania State Police, Bureau of Forensic Services, Greensburg Regional Laboratory issued a DNA Analysis Lab Report indicating that, inter alia:
4 Charles McCahan (Item K2) can be excluded as a contributor to the interpretable DNA profile(s) obtained from:
The swabs of the left hand fingernail clippings from Ouita
McCahan (Item Q6)
6 Charles McCahan (Item K2) can be excluded as a contributor to the interpretable Y chromosome DNA haplotypes(s) [sic] obtained from the evidence in this case.
17. On March 6, 2023, Mr. McCahan, through counsel, filed an Amended Omnibus Pre-Trial Motion, seeking, inter alia, dismissal of the McCahan Proceedings due to the results of this DNA Analysis Report.
18. On or about May 17, 2023, the Commonwealth nolle prossed all charges in the McCahan Proceedings.
In the matter of Commonwealth v. Brian Wilson Harris
19. On April 29, 2021, the Pennsylvania State Police filed a Police Criminal Complaint accusing Brian Harris of, inter alia, rape of a child. That same day, the Pennsylvania State Police obtained a warrant for Mr. Harris' arrest.
20. In or before February of 2022, approximately ten months after the filing of the Police Criminal Complaint set forth in paragraph 19 supra, Mr. Harris was arrested. This matter was thereafter docketed in the Court of Common Pleas of Bedford County at CP-05-CR-0000081-2022 (hereinafter the "Harris Proceedings").
21. Although Respondent was aware that approximately ten months had passed between the filing of the Police Criminal Complaint set forth in paragraph 19 supra and Mr. Harris' arrest, Respondent failed to promptly secure the commencement of a trial in the Harris Proceedings, as required by Pennsylvania Rule of Criminal Procedure 600; Article 1, Section 9 of the Pennsylvania Constitution; and the Sixth Amendment to the United States Constitution.
22. On April 7, 2022, Respondent filed a Criminal Information in the Harris Proceedings.
23. On May 20, 2022, Mr. Harris, through counsel, filed an Amended Omnibus Pretrial Motion seeking, inter alia, dismissal of the Harris Proceedings pursuant to Pa.R.Crim.P. 600.
24. On July 26, 2022, an evidentiary hearing was conducted regarding this Motion at which time, inter alia, Respondent had the following exchange with the Court:
THE COURT: Okay. So, let me just short circuit it here. What's the Commonwealth's position on this then?
ATTORNEY CHILDERS-POTTS: Your Honor, the Commonwealth's position is that it comes down to what length of time passed from the time that the Criminal Complaint was filed and the arrest warrant was obtained. The testimony was clear
today that there was a period of time the due diligence report would show that as well. There was a period of time where it appears that nothing was done in an attempt to locate Mr. Harris.
THE COURT: So, in these cases you set your beginning date April 29th. And then you start taking any excludable time out of that. Are you arguing due diligence time here?
ATTORNEY CHILDERS-POTTS: Quite frankly, Your Honor, I'm simply leaving it to the Court's discretion.
THE COURT: Because I don't -
ATTORNEY CHILDERS-POTTS: I don't think there's any excludable time.
ATTORNEY HENDERSHOT: No.
THE COURT: Okay. Because you're - I was looking back through. There may have been -wasthere a bail hearing motion filed at some point?
ATTORNEY HENDERSHOT: There was.
THE COURT: Okay. But there weren't any Pre-Trial Motions filed or anything of that other than this.
ATTORNEY HENDERSHOT: No.
THE COURT: So, you're not arguing the excludable time, you're just arguing whether or not there's due diligence. If you are arguing there's due diligence what due diligence is there?
ATTORNEY CHILDERS-POTTS: Only what's been testified to here today, Your Honor.
THE COURT: Do you have anything? Any argument on it? ATTORNEY CHILDERS-POTTS: Honestly, Your Honor, the
majority of what Attorney Hendershot is arguing today in regards to the due diligence report and what was done is accurate. I can't disagree with it. There was an extended period of time where that arrest warrant was active and no one took action with the State Police in an attempt to serve it.
THE COURT: But -
ATTORNEY CHILDERS-POTTS: But it was a result of turnover, or I agree. It is absolutely a result of a significant turnover. But that doesn't mean that the Defendant's rights can be violated.
THE COURT: Yeah. So, but you don't want to argue - I'm not saying you need to. But you're not going to argue any dates or anything like that?
ATTORNEY CHILDERS-POTTS: I don't think there's a legitimate argument to be made, Your Honor.
25. By Memorandum Opinion dated July 28, 2022, the Court dismissed the Harris Proceedings with prejudice and noted that:
Defendant argues that the Commonwealth has failed to comply with the speedy trial requirements of Pa.R.Crim.P. 600 and that, therefore, the charges should be dismissed with prejudice. In response, the Commonwealth did not contest Defendant's allegations, chose not to argue the case, and stated that it was "simply leaving it to the Court's discretion."2
Despite being given several opportunities during the hearing, the Commonwealth chose not to argue any due diligence nor any other excludable time. Given that the Commonwealth has chosen not to argue any due diligence nor otherwise excludable time, the conclusion is rather elementary. More than 365 days have elapsed since the filing of the Criminal Complaint and the Commonwealth has made no attempt at proving due diligence nor otherwise excludable time.
We also point out that, despite the delay by the Pennsylvania State Police, dismissal under Rule 600 was not inevitable. Indeed, had the District Attorney's Office acted diligently, the case could still have been prosecuted. Defendant's preliminary hearing occurred on February 23, 2022. The District Attorney could have immediately filed the Criminal Information and asked to place the matter on for jury selection. Had the District Attorney done so, the case could have been scheduled during two separate criminal jury trial terms (March and April), prior to Rule 600 elapsing. In fact, based upon our review of the court calendar, a total of eight unused trial dates would have been available during those trial terms to try the present case. Unfortunately for the alleged child rape victim (and the County's interest in the prosecution of serious criminal cases), the District Attorney did not file the Criminal Information until April 7, 2022, and thereafter failed to take any action in moving the case quickly for trial. As a result of the Commonwealth's lack of diligence, which violated Defendant's constitutional right to a prompt trial, the charges must be dismissed.
2 This statement was made by the Commonwealth at the evidentiary hearing on July 26, 2022. We find it odd that the District Attorney chose to wait until the hearing was scheduled, call four witnesses from the Pennsylvania State Police, only then to concede the entire issue to Defendant. In our view, it appears as though the Commonwealth either had no understanding of the issues or had no expectation of what its own witnesses would testify about. This view is reinforced given that the District Attorney stated that there were several witnesses she "would like to hear from" when we asked if she was calling any witnesses.(emphasis in original).
In the matter of Commonwealth v. Gordon Lee Klnzey, Jr.
26. In or about November of 2015, Gordon Kinzey, Jr., was arrested and charged with indecent assault of a person less than thirteen years of age and sexual intercourse with an animal. These matters were thereafter docketed in the Court of Common Pleas of Bedford County at CP-05-CR-0000588-2015 and CP-05-CR-0000640-2015 (hereinafter the "Kinzey Proceedings").
27. On April 26, 2016, Mr. Kinzey pled guilty to indecent assault of a person less than thirteen years of age and sexual intercourse with an animal.
28. On August 19, 2016, Mr. Kinzey was sentenced to confinement for no less than three years and no more than six years, followed by a five-year period of probation.
29. In or before April of 2022, Mr. Kinzey violated the terms of his probation.
30. On April 19, 2022, Mr. Kinzey was arrested and detained in the Bedford County Jail.
31. Respondent failed to secure a hearing "as speedily as possible" regarding the Commonwealth's allegations that Mr. Kinzey had violated the terms of his probation. See Pa.R.Cim.P. 708(B)(1).
32. By email to Respondent dated July 11, 2022, at 11:11 a.m., Ms. Hendershot said, "I believe that Gordon Kinzey is in jail for a revocation of special probation. However, I have not seen a petition for him. Could you please advise if a revocation petition has been filed?"
33. By email to Ms. Hendershot dated July 11, 2022, at 12:16 p.m., Respondent said, "[w]e have not yet received the revocation packet from state parole. Once we receive it, we will file the petition. Do you know approximately how long he has been in our jail?"
34. By email to Respondent dated July 11, 2022, at 2:10 p.m., Ms. Hendershot said, "[a]ccording to our jail list, he was lodged on April 29, 2022. This really needs to get scheduled."
35. By email to Ms. Hendershot dated July 11, 2022, at 4:43 p.m., Respondent said, "[t]hat's too long to go without us receiving the information. I went through my email and I don't have anything. I will reach out to state parole regarding the matter. Thank you for letting me know."
36. By email to Respondent dated August 18, 2022, Ms. Hendershot said:
I emailed you about Gordon Kinzey on July 11, 2022 regarding the fact that a revocation petition has not been filed. Attorney Childers-Potts stated that she would be looking into the issue as nothing had been received from state parole. However, we have not received any further communication from anyone on the issue. Tomorrow will make four months that Mr. Kinzey has been incarceration [sic]. I will be filing a habeus [sic] corpus petition on his behalf.
37. On August 18, 2022, Mr. Kinzey, through counsel, filed a Petition for Writ of Habeas Corpus, averring that, inter alia:
(a)"on July 11, 2022 his counsel contacted the Bedford County District Attorney to inform her that no petition for the alleged violation of special probation had been filed, and the District Attorney informed counsel the matter would be reviewed"; and
(b)"as of the date of this filing no petition for violation of special probation has been filed."
38. On August 22, 2022, Respondent filed a Motion to Schedule Preliminary Hearing to Violate Special Probation.
39. On August 22, 2022, a hearing was conducted regarding the Petition set forth in paragraph 37 supra.
40. On September 6, 2022, a hearing was conducted regarding the Motion set forth in paragraph 38 supra, at the conclusion of which the Court directed each party to file a brief within ten (10) days.
41. On September 12, 2022, Mr. Kinzey, through counsel, filed a Memorandum stating that, inter alia:
On August 18, 2022, as more than four (4) months had past [sic] following Mr. Kinzey being detained without a petition for a hearing on his alleged violation having been filed, Mr. Kinzey, through undersigned counsel, filed a Petition for Writ of Habeus [sic]. A hearing was scheduled on August 22, 2022.
The habeus [sic] hearing on August 22, 2022 was first scheduled at 9:00 a.m. At the time that the hearing was scheduled no petition to schedule a hearing on Mr. Kinzey's alleged violation of special probation had been filed.
Due to a heavy caseload, Mr. Kinzey's hearing was moved to 1:30 p.m. that same day. At approximately 1:42 p.m., the District Attorney's Office finally filed a petition requesting that a hearing on Mr. Kinzey's alleged violation be scheduled, more than four (4) months following the detainer being lodged against him by Chief Bowser.
In response to undersigned counsel's July 11, 2022 email to her informing her that no petition had been filed, Attorney Childers-Potts responded "[t]hat's too long to go without us receiving the information. I went through my email and I don't have anything. I will reach out to state parole regarding the matter. Thank you for letting me know." However, as testified to by Agent Ritchey, Agent Villa and Cheryl May, no effort was made by the District Attorney's Office to obtain the information regarding Mr. Kinzey from PBPP until August 22, 2022, the date of Mr. Kinzey's habeus [sic] corpus hearing.
In the instant matters, the Commonwealth provided absolutely no reasonable explanation for the delays in filing a petition for revocation to trigger the scheduling of a Gagnon I hearing.
The Commonwealth provided no explanation as to why it was completely unaware from April 19, 2022 until July 11, 2022 that Mr. Kinzey was incarcerated in BCCF solely based upon the allegation that he violated the terms of his special probation. However, Attorney Childers-Potts was forced to concede that she was aware of his incarceration on July 11, 2022 due to the email she received from the undersigned counsel. Further, Ms. May testified that she was notified by staff of the PD Office in mid-July as well that Mr. Kinzey was incarcerated and no petition to violate his special probation had been filed. Therefore, at least two individuals in the DA's Office, were aware of the situation in mid-July of 2022. Not one step was taken to have the PBPP packet mailed, faxed or physically brought to the DA's Office even though Agent Ritchey testified that his [sic] is in Bedford five (5) days per week and stops by the DA's Office one (1) or two (2) times per week.
Based upon the testimony presented by Agent Ritchey and Ms. May, the Commonwealth failed to take any proactive steps to obtain the information necessary to file the revocation petition until August 22, 2022. Furthermore, Attorney Childers-Potts conceded upon questioning by your Honorable Court that had Mr. Kinzey had [sic] not filed a petition for habeus [sic] corpus more time would have passed without the filing of the revocation petition.
Furthermore, the inaction and lack of due diligence of the Commonwealth violated Mr. Kinzey's right to due process and right to the resolution of his revocation matter as "speedily as possible" as provided in Pa.R.Crim.P. 708. While the Commonwealth presented your Honorable Court with lackluster excuses for its failure to act, it showed absolutely no regard for the prejudice suffered by Mr. Kinzey, and it showed no concern for its violation of Mr. Kinzey's rights whatsoever. The Commonwealth was more concerned with deflecting blame than
with concluding matters in a timely manner.
42. Respondent failed to file a brief as directed by the Court.
43. If this matter proceeded to a disciplinary hearing, Respondent would testify that she attempted to electronically file a brief on September 16, 2022, but later discovered that this filing was not accepted because pages were missing therefrom. Respondent would further testify that she did not discover that this filing had been rejected until she reviewed the Opinion and Order set forth in paragraph 44 infra.
44. By Opinion and Order dated September 19, 2022, the Court dismissed with prejudice the Motion set forth in paragraph 38 supra and noted that, inter alia:
For reasons we discuss, infra, Defendant was held in the Bedford County Jail on April 19, 2022 after a detainer was lodged against him for a suspected probation violation. Since Defendant remained incarcerated and no action was taken by the Commonwealth to file a revocation petition, Defendant's counsel filed a Petition for Writ of Habeas Corpus on August 19, 2022. On August 22, 2022, we held a hearing on the Petition for Writ of Habeas Corpus and denied the requested relief until a hearing on the merits of Defendant's probation revocation.3 We held a Gagnon I hearing on September 6, 2022, and this Opinion and Order of Court follows.4
On July 11, 2022, after Defendant had been incarcerated on the detainer for nearly three months, the Public Defender
emailed the District Attorney inquiring into whether a revocation petition had been filed. The District Attorney replied that no revocation packet had been received from State Parole, and inquired as to how long Defendant had been incarcerated. In reply, the Public Defender informed the District Attorney that Defendant had been incarcerated since April 29, 2022, and stated that, "[t]his really needs to get scheduled."7 The District Attorney replied, "[t]hat's too long to go without us receiving the information... I will reach out to state parole regarding the matter." However, despite the District Attorney's assurance, there is absolutely no evidence that any action was taken for more than a month.
Defendant became incarcerated on the State Parole detainer on April 19, 2022 and has remained incarcerated to present date. Therefore, more than four months had elapsed when the Commonwealth filed the Motion to Violate Special Probation.9 At the hearing, the District Attorney conceded that this passage of time was unreasonable. Indeed, according to the District Attorney's own email on July 11, 2022 (when Defendant had then been incarcerated approximately three months), the District Attorney conceded then that it "was too long to go without us receiving the information."
Moreover, we are convinced that the delay would have been much longer had Defendant's counsel not filed the Petition for Writ of Habeas Corpus. Defense counsel filed the Petition for Writ of Habeas Corpus on August 18, 2022, and a hearing on said petition was scheduled for August 22, 2022 at 9:00 a.m. Despite the District Attorney's claim that her office had obtained information for the revocation earlier in August, the information from State Parole offered as Commonwealth exhibits were not even faxed until August 22, 2022 at 9:46 a.m.-after the hearing on Defendant's motion was originally scheduled to begin. Even more, the District Attorney did not file the Motion to Schedule Preliminary Hearing to Violate Special Probation until August 22, 2022 at 1:42 p.m.-again, after the hearing was to begin. Given that the District Attorney failed to take any action until the day of the habeas corpus hearing, it is obvious that Defendant would still be waiting for a hearing had he not filed a motion himself.10
Therefore, while the delay here is very substantial, we also recognize that, had Defendant not acted himself, the delay would have been even longer. The law requires that the District Attorney act with due diligence, not that an incarcerated defendant exhaust all attempts to secure his release.
Next, we turn to the third prong of the analysis: whether Defendant was prejudiced by the Commonwealth's delay. We find that he was. Defendant became incarcerated on April 19, 2022 on the detainer lodged against him by State Parole. Defendant has remained incarcerated on said detainer exclusively for over four months. Clearly, the inaction of the District Attorney has prejudiced Defendant by incarcerating him without any hearing for over four months, and denying Defendant a prompt hearing on the violations. Again, under the relevant caselaw, we find the inaction by the District Attorney prejudiced Defendant by unnecessarily restraining his personal freedom for over four months.
Indeed, the unnecessary nature of the incarceration here is evident. All that was required of the District Attorney was to file a simple petition, which the District Attorney conceded took less than an hour to draft. Despite the simple task required, the District Attorney failed to act for more than four months and only when forced to the issue by Defendant's own motion. We find these circumstances violate any interpretation of the term "as speedily as possible."
We stress that, although we believe it to be the correct legal ruling, we are ultimately unsatisfied by the result. We would prefer to rule on the actual merits of the probation revocation. However, the District Attorney's dereliction of duty has prevented us from doing so. Unfortunately, we recognize the possibility here that Defendant has evaded responsibility for violating the terms of his supervision. Nonetheless, the District Attorney must also be held responsible for neglecting simple procedural rules that result in the potentially endless incarceration of citizens without due process. In our opinion, a dangerous precedent is set if a citizen can be incarcerated for more than four months while being denied due process of a hearing due to the dilatory
inaction of the District Attorney. We refuse to set that precedent.
3 We point out the timeline of the Commonwealth's filing of the present Motion to Violate Special Probation. The hearing on Defendant's Petition for Writ of Habeas Corpus was scheduled for August 22, 2022 at 9:00 a.m. Due to the amount of cases that morning, we held the hearing over until 1:30 p.m. on the same date. The Commonwealth's Motion to Violate Special Probation was not filed until 1:42 p.m. on August 22, 2022.
4 At the hearing, we provided the parties ten days to file briefs. The Public Defender filed a comprehensive memorandum of law on September 12, 2022. To date, the District Attorney has failed to file anything.
7 We note that, although the email states Defendant became incarcerated on April 29, 2022, it is seemingly undisputed that Defendant was actually detained by State Parole on April 19, 2022.
9 At the hearing, the District Attorney initially argued that the length of the delay was only a month, commencing from the July 11, 2022 email. This argument is unsupported by any interpretation of the law.
10 At the hearing, the District Attorney conceded that Defendant's motion had "something" to do with the Commonwealth finally acting upon the revocation. Given the timeline discussed, supra, we find that Defendant's motion had everything to do with forcing the District Attorney to act. To think otherwise would require a belief that, over a span of more than four months, the District Attorney just coincidentally happened to file the revocation petition on the same day Defendant was asking to be released from the detainer.(emphasis in original, footnotes and internal citations omitted).
In the matter of Commonwealth v. Trlcia Ann Crawley
45. In or about August of 2014, Tricia Ann Crawley was arrested and charged with, inter alia, manufacture, delivery or possession with intent to manufacture or deliver a controlled substance. This matter was thereafter docketed in the Court of Common Pleas of Bedford County at CP-05-CR-0000497-2014 (hereinafter the "Pennsylvania Crawley Proceedings").
46. On or about June 19, 2015, Ms. Crawley pled guilty in the Pennsylvania Crawley Proceedings to, inter alia, manufacture, delivery or possession with intent to manufacture or deliver a controlled substance, and was sentenced to confinement for a period of no less than two-and-a-half years and no more than five years, followed by a five-year period of probation.
47. On or about August 10, 2021, Ms. Crawley was indicted in the United States District Court for the Western District of Pennsylvania and charged with Possession with Intent to Distribute a Quantity of a Mixture and Substance Containing a Detectable Amount of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide, commonly known as fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). This matter was docketed at 3:21-cr-00015-SLH-KAP (hereinafter the "Federal Crawley Proceedings")
48. On February 23, 2022, Ms. Crawley pled guilty in the Federal Crawley Proceedings.
49. On June 27, 2022, Ms. Crawley was sentenced in the Federal Crawley Proceedings to confinement for fifteen months, followed by a three-year period of supervision.
50. On or about July 6, 2022, Ms. Crawley was detained in the Bedford County Jail for violating her probation in the Pennsylvania Crawley Proceedings.
51. On September 30, 2022, Ms. Crawley, through counsel, filed a Petition for Writ of Habeas Corpus in the Pennsylvania Crawley Proceedings, averring that, inter alia:
(a) "her counsel has been informed by PBPP that on July 18, 2022 PBPP sent the documentation regarding its allegations of Petitioner's alleged violation of her special probation to the Bedford County District Attorney's Office"; and
(b) "as of the date of this filing no petition for violation of special probation has been filed."
52. By Order dated September 30, 2022, a hearing was scheduled regarding this Petition for October 11, 2022, at 1:30 p.m.
53. On October 11, 2022, Respondent filed a Motion to Schedule Preliminary Hearing to Violate Special Probation, in which she averred that:
(a) "[o]n April 12, 2021, the Defendant was arrested on suspicion of Possession With Intent to Distribute a Mixture Containing Fentanyl, as a federal offense. On June 27, 2022, the Defendant was sentenced to serve 15 months in a federal prison followed by supervision for three years";
(b)"[o]n April 21, 2021 [sic], the Defendant was found to be in possession of knives, pepper spray, a stun gun and paintball guns. Possessing these items is a violation of Rule 5B which states, 'You shall refrain from owning or possessing any firearms or other weapons'"; and
(c)"[o]n April 12, 2021, the Defendant tested positive for cocaine and amphetamines. She also admitted to using heroin."
54. On October 25, 2022, a hearing was conducted regarding this Motion at which time, inter alia, Respondent had the following exchange with the Court:
JUDGE LIVENGOOD: ... Is it your practice to put people in jail with no hearing for upwards of three or four months with no hearing - with no hearing? I mean the other state parole agent is - is shaking his head no, and that's what we're talking about here.
ATTORNEY POTTS: We have up to 101 days to file so that's where - you're on special probation which turns to the county for violation.
JUDGE LIVENGOOD: You may - you may state parole may have your standards and - and that's perfectly fine. I have a big problem with the Commonwealth being able to put someone in jail for and let - let's be honest here. It's not just three months here because I think the defendant is right, had she not brought this issue up this is just like Mr. Kinsey [sic], had she not pushed the issue she'd be sitting there five months, six months, seven months. I don't know how long she would have been sitting there because nothing was done, and I have a huge problem in this country allowing the state to be able to incarcerate someone. Now, I know it's a probation so I know the protections for your - - your rights are somewhat restricted because they're living a different under a different set of rules than just your non-probation.
But the prospects of being able to incarcerate someone for three months, four months, five months with no hearing whatsoever without them bringing them [sic] into Court whatsoever to know why they're being housed in jail is a scary prospect in this country. I - I don't - it's a dangerous thing to allow the state to be able to do that, and that's why that rule exists.
I mean do - do you think under any examination of the word as speedily as possible is three months incarceration, just
on the plain language of the statute as speedily as possible.
ATTORNEY POTTS: I don't think that that question can be answered, Your Honor, because the rules dictate that it's on a case by case basis.
JUDGE LIVENGOOD: Okay. Well, let me - let me - under - under the circumstances of this case. The defendant is sitting in our jail you your office has the - all the information you need to file the two page document to get it into Court, and nothing is done. Is that as speedily as possible? I mean you can disagree, but I - I am just telling you my - my definition as speedily as possible is not letting someone languish in three months in jail.
I - I - I would assume if you disagree with Mr. Kinsey's [sic] case you would have appealed it, you did not, so, I don't - I assume you don't disagree with that case. I don't know. I just have a huge problem with this is nothing against the state parole agents here. I am not complaining about your actions here because it seems like you forward the information. I mean you did - you did what you were supposed to do.
My issue here is with the Commonwealth that now the second time in the matter of two months I think people are being housed in our jail with no hearing. There is - there is no other -- give me another concept in our - in our constitution republic [sic] that allows someone to be incarcerated without any due process for a period of three months.
ATTORNEY POTTS: There isn't any.
JUDGE LIVENGOOD: I - I agree with that. I mean it's the reason why I mean on a weekly, sometimes a daily basis I am getting things scheduled, the person is picked up on a bench warrant, and I got to get that person scheduled within 72 hours, that's 72 hours - you know someone gets arrested they got to be arraigned in a certain amount of time. They got to have a preliminary hearing within what 14 days, ten, 14 days.
There is a reason we have all those protections in order. It's so they can get in front of a tribunal and find out what's going on with the case. We're stripping away people's rights here. So are you saying the length of the delay you - you're not saying
whether or not you can say that that's as speedily as possible in the case.
ATTORNEY POTTS: The only argument that I would make in regards to the as speedily as possible, Your Honor, you made very clear the last time we were in Court for this case that you did not want to hear that argument.
JUDGE LIVENGOOD: Well, if- if you're going to say you're just going to blame someone in your office, well - well go ahead if there is another explanation for it. As far as to the length of the delay, but - but if you blame anybody in your office for messing it up that doesn't mean it's okay. It's still on the Commonwealth like that - that's not a reason for the excuse.
ATTORNEY POTTS: I am aware that's why I am having the argument, Your Honor.
JUDGE LIVENGOOD: Okay. Well, I - because even if you would make that argument let's say my office shut down for a month, I didn't have any employees. It doesn't matter because it's all on you.
ATTORNEY POTTS: I agree.
JUDGE LIVENGOOD: Okay.
ATTORNEY POTTS: And this delay was in large part because of being the only one for the majority of that period of time.
JUDGE LIVENGOOD: I - I -.
ATTORNEY POTTS: Still falls -.
ATTORNEY HENDERSHOT: I would disagree.
JUDGE LIVENGOOD: I agree with that like
ATTORNEY HENDERSHOT: There were two other assistants in office July 18th.
JUDGE LIVENGOOD: You - a majority of the time that happened in this case is when you had assistants in your office. How are you going to blame it on the assistants?
ATTORNEY POTTS: I am not blaming the assistants.
JUDGE LIVENGOOD: You just did.
ATTORNEY POTTS: I did not.
JUDGE LIVENGOOD: Ms. Childers did you not just say that you were going to argue that it was because you had - you were the only one left in the office? Am I the only one hearing that?
ATTORNEY POTTS: No, I did say that, Your Honor, but I mean because I was the only one for that period of time that caused an additional delay in the filing because I was the only one there that's it. I am not saying anything about anyone else.
JUDGE LIVENGOOD: So the delay in filing the revocation here, which is a two page document, from September 2nd or 1st whenever, the assistants left to October 11th that - that length of the delay is caused by the assistants not being there?
ATTORNEY POTTS: It was caused by me being the only one there who is attempting to keep track of these particular events. I am the only one prepare the petitions [sic], in addition to all of the other things I am the only one.
JUDGE LIVENGOOD: That that excuse just can't carry any water. I mean that -.
ATTORNEY POTTS: As, Your Honor, indicated it is still the burden is still on the Commonwealth.
JUDGE LIVENGOOD: That that I don't understand how you can like how many - I think when I went back to the last hearing and how many people we have sitting on detainers in our jail, I think there were currently six, okay, so out of those six eligible people I don't know how many. I know she is one of them, but I don't
know how many other people at max it's five other people, I highly doubt that's the case, but she is at least one of them. It would take ad [sic] most an afternoon to look through those cases to see if any of them been issued [sic], and in this case it would take probably less than 15 minutes to get the packet from state parole and write down a petitioner revoke [sic], this one is actually really easy because you just say hey she's convicted of federal offense and she got sentenced that's it. I don't - so I don't know how you claim to me that because you're the only one in the office that it took you two months to do that, sorry September 1st to October 11th so about a month and ten days that - we might as well shut the system down if that's how it's going to operate, so, well do you want to argue anything else as far as the length of the delay, the reason for the delay, or the prejudice?
ATTORNEY POTTS: No, Your Honor.
JUDGE LIVENGOOD: Okay. Well, I mean it's - it's the exact same factual case as Mr. Kinsey [sic], and I agree with the defendant here. It's - it's actually worse because like Mr. Kinsey [sic] the - the length of the delay is I mean arguably it's a lot longer here for her. I understand why state parole didn't file the violation because a lot of times when you file violation based on new charges the defendant wants to continue it, but what it does is it gives the defendant the ability to - to decide what they want to do and we - we have a hearing on it.
I understand why they didn't file it, but the time she was incarcerated is well over three months there is - there is no allegation here that the Commonwealth didn't receive the information to file the petition. It was never filed until the defendant sought her own release through a petition for habeas corpus and the petition wasn't filed until the day of the hearing on that. I mean that's just - so the length of the delay and the reason the delay [sic] are really strong here, and there is obviously she has - she's been prejudice [sic] by it.
I thought it was a case when I saw the revocation until I heard the testimony here today that maybe she was still serving that sentence that way she wouldn't be prejudice [sic] by it, but I mean she's clearly prejudice [sic] by it both the witnesses
testified there is nothing else holding her, so, it's clearly a case exactly like Mr. Kinsey [sic] and - and to the extent that I ruled on Mr. Kinsey's [sic] case and the exact same set of circumstances. It's - it's much worse and I take that into account here too because I mean the Commonwealth should know better, so, I don't - I don't feel I need to write anything on it at this point.
I am going to dismiss the petition to revoke based on the fact that it was not filed as speedily as - well that she didn't get a hearing as speedily as possible and violation of the Pennsylvania rules criminal procedure [sic], so, ma'am, I am going to dismiss the violation with prejudice, and again I don't take - I don't like doing this because this is another case much like Mr. Kinsey's [sic] case where she's not being held responsible for violations of her probation, this was a clear one, and but I - I can't setup a standard where the Commonwealth is able to just incarcerate people for three months, four months at a time or maybe endlessly without a hearing.
I - I can't allow that to happen, so, ma'am the petition revoke supervision [sic] is dismissed, and we'll let it at that, so, yeah.
55. By Opinion and Order dated October 25, 2022, the Court dismissed with prejudice the Motion set forth in paragraph 53 supra and noted that, inter alia:
The matter presently before us is the motion to revoke Defendant's state supervised probation. As we stated on the record, our actual ruling on the revocation petition is rather elementary. The District Attorney has failed to file a simple motion in a timely manner, thereby violating Pa.R.Crim.P. 708 and Defendant's due process rights. As such, the Motion to Violate Special Probation must be dismissed with prejudice.
We are also compelled to comment upon what we now find to be a course of conduct of egregious inaction by the District Attorney. In a span of only a month, this is the second case in which the failure of the District Attorney to perform a basic task
has violated a person's right to due process, and necessitated the complete dismissal of a petition to revoke probation.1
The necessary two-page motion would have taken the District Attorney-at an absolute maximum-fifteen minutes to draft. Moreover, the simple document could have been drafted by the District Attorney's numerous support staff. In short, there is no legitimate excuse why-for the second time in a month-the District Attorney took more than three months to complete a simple, fifteen-minute task, especially when it involves a matter of such importance.
1 On September 19,2022, in Commonwealth v. Gordon Kinzey (CR-588 and CR-640 for 2015), we dismissed the petition to revoke probation because the District Attorney failed to take any action, thereby causing the defendant to be incarcerated for more than four months without a hearing. In our decision, we found that there was a complete "dereliction of duty" by the District Attorney. Unfortunately, the District Attorney has done nothing to remedy the situation as the instant case presents the exact same circumstances.(emphasis in original, internal citation omitted).
SPECIFIC RULE VIOLATIONS
56. By her conduct set forth in paragraphs 7 through 55, Respondent admits that she violated the following Rules of Professional Conduct:
(a) Rule of Professional Conduct 1.1, which provides that, "[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation";
(b) Rule of Professional Conduct 1.3, which provides that, "[a] lawyer shall act with reasonable diligence and promptness in representing a client";
(c) Rule of Professional Conduct 3.1, which provides, in pertinent part, that, "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous";
(d) Rule of Professional Conduct 3.2, which provides that, "[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client"; and
(e) Rule of Professional Conduct 8.4(d), which provides that, "[i]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice."
SPECIFIC JOINT RECOMMENDATION FOR DISCIPLINE
57. ODC and Respondent jointly recommend that the appropriate discipline for Respondent's admitted misconduct is a suspension from the Bar of this Commonwealth for a period of two years.
58. Respondent hereby consents to such discipline being imposed upon her. Attached to this Petition as Exhibit A is Respondent's executed Affidavit, required by Rule 215(d), Pa.R.D.E., stating that she consents to the recommended discipline and the mandatory acknowledgements contained in Rule215(d)(i)-(iv), Pa.R.D.E.
59. In support of ODC and Respondent's joint recommendation, it is submitted that the following aggravating circumstances are present:
(a) Respondent committed the misconduct set forth herein in her capacity as a public prosecutor. Office of Disciplinary Counsel v. Anthony C. Cappuccio, 48 A.3d 1231, 1240 (Pa. 2012); and
(b)The misconduct set forth herein generated negative local publicity. See, e.g., Office of Disciplinary Counsel v. Jimmie Moore, 87 DB 2019 (D. Bd. Rpt. 6/18/2021) (S.Ct. Order 5/16/2022) at 11; Office of Disciplinary Counsel v. Jeff Foreman, 164 DB 2009 (D. Bd. Rpt. 5/19/2014) ( S.Ct. Order 9/17/2014). Specifically, the infringement of Mr. Harris' speedy trial rights was featured in an August 12, 2022 article published by WJAC entitled, "'Nonsensical & inconsistent:' Bedford DA's office under fire from judge after 2nd mistrial."
60. In support of ODC and Respondent's joint recommendation, it is submitted that the following mitigating circumstances are present:
(a) Respondent has accepted responsibility for her misconduct by resigning as District Attorney of Bedford County, by virtue of her consent to the suspension sought herein and in her verified October 2, 2023 Statement of Position, wherein she concedes that, regarding the Kinzey and Crawley matters set forth in paragraphs 26-55 supra, "she and her Office could and should have done more to address the issue" and "she accepts that as District Attorney, responsibility for her Office's performance, or failings, fell on her";
(b) Respondent has cooperated with ODC's investigation. Specifically, Respondent is consenting to the suspension sought herein prior to ODC's initiation of formal charges against her and, assuming such suspension is ultimately imposed, has thereby conserved the limited resources of the attorney disciplinary system;
(c) Respondent has no history of discipline in more than nineteen (19) years as a member of the Bar of this Commonwealth; and
(d) Respondent is involved in her local community in a variety of ways. Respondent participates in and volunteers for charitable programs and fundraisers through Round Knob Church of God and First Christian Church of Everett. She volunteers with and financially supports police, fire and EMS workers, high school mock trial programs and youth sporting events. She participates in community organizations including Toys for Tots, Operation Christmas Child, "Stuff the Bus" (gathering supplies for local schools) and the Salvation Army. She also engages in community building and revitalization activities like "Reimagine Everett" and the Bedford County "Rails to Trails" program, and previously served on the board of the Everett Area Free Library.
61. Matters involving multiple instances of neglect often resolve with suspensions of one year and one day, See Office of Disciplinary Counsel v. Brittany Maire Yurchyk, 107 DB 2020 (D. Bd. Rpt. 10/22/2021) (S.Ct. Order 12/27/2021) at 18-19 (collecting cases); however, such matters have also resolved with shorter suspensions when such suspensions are imposed via consent discipline. See, e.g., Office of Disciplinary Counsel v. Michael John Csonka, 89 DB 2023 (S.Ct. Order 11/9/2023) (Consent Discipline) (one-year suspension); Office of Disciplinary Counsel v. Douglas B. Breidenbach, Jr., 89 DB 2019 (S.Ct. Order 6/27/2019) (Consent Discipline) (six-month suspension imposed for single instance of neglect, aggravated by a prior public reprimand and a prior private reprimand, each of which had been imposed for neglect).
62. Csonka was suspended on consent for one year after filing "inaccurate, untimely and unverified filings" in multiple bankruptcy matters which unnecessarily consumed the limited resources of the United States Bankruptcy Court for the Middle District of Pennsylvania. Csonka 89 DB 2023 at 2-8. Csonka had received a prior informal admonition, but otherwise had no history of discipline in twenty years as a member of the Bar of this Commonwealth. Id. at 1-2.
63. Unlike Csonka, See Id. at 5-7, the factual averments contained herein do not reflect any intentional dishonesty; however, because Respondent's misconduct was committed in her capacity as a public prosecutor, it had the effect of depriving criminal defendants of liberty and due process and, with respect to the Harris, Kinzey, and Crawley matters set forth in paragraphs 19-55 supra, deprived the citizens of Bedford County of adjudications of serious criminal allegations on the merits thereof.
64. Respondent no longer serves as a public prosecutor and, as set forth in paragraph 7 supra, has not held any such position since February of 2023.
65. A two-year suspension may exceed what is typically imposed in matters involving multiple instances of neglect-particularly such matters that resolve via consent discipline; however, a two-year suspension appropriately reflects that Respondent's misconduct was committed in her capacity as a public prosecutor.
66. The Disciplinary Board rejected a previous Joint Petition in Support of Discipline on Consent, which recommended a one-year suspension, after a Three-Member Panel thereof determined "that a one-year suspension is insufficient."
WHEREFORE, ODC and Respondent respectfully request that:
(a) Pursuant to Rule 215(e) and 215(g), Pa.R.D.E., a three-member Panel of the Disciplinary Board review and approve the above Joint Petition in Support of Discipline on Consent and file a recommendation with the Supreme Court of Pennsylvania that the Supreme Court enter an Order suspending Respondent from the Bar of the Commonwealth of Pennsylvania for a period of two years, and directing Respondent to comply with all of the provisions of Rule 217, Pa.R.D.E.; and
(b) Pursuant to Pa. R.D.E. 215(i), the three-member Panel of the Disciplinary Board enter an order directing Respondent to pay the necessary expenses incurred in the investigation and prosecution of this matter within 30 days after the notice of the taxed expenses is sent to Respondent.
VERIFICATION
The statements contained in the forgoing Joint Petition in Support of Discipline on Consent are true and correct to the best of my knowledge or information and belief and are made subject to the penalties of 18 Pa.C.S, § 4904 relating to unsworn falsification to authorities.
EXHIBIT A
AFFIDAVIT UNDER RULE 215(d). Pa.R.D.E.
Respondent, Lesley Rae Childers-Potts, hereby states that she consents to a two-year suspension from the Bar of the Commonwealth of Pennsylvania, as jointly recommended by Petitioner, the Office of Disciplinary Counsel, and Respondent, in the Joint Petition in Support of Discipline on Consent to which this affidavit is attached, and further states that:
1. She is an attorney admitted in the Commonwealth of Pennsylvania, having been admitted to the bar on April 12, 2004.
2. She desires to submit a Joint Petition in Support of Discipline on Consent under Rule 215(d), Pa.R.D.E.
3. Her consent is freely and voluntarily rendered; she is not being subjected to coercion or duress; and she is fully aware of the implications of submitting this affidavit.
4. She is aware that there is a pending proceeding involving allegations that she has been guilty of misconduct, as set forth in the Joint Petition in Support of Discipline on Consent under Rule 215(d), Pa.R.D.E., to which this affidavit is attached.
5. She acknowledges that the material facts set forth in the Joint Petition are true.
6. She consents because she knows that if the matter pending against her is prosecuted, she could not successfully defend against the charges.
7. She acknowledges that she is fully aware of her right to consult and employ counsel to represent her in the instant proceeding. She has retained, consulted and acted upon the advice of counsel in connection with her decision to execute the within Joint Petition.
It is understood that the statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).