Judge Michael Murphy: "If I was the victim, I would not be happy"

"If I was the victim, I would not be happy," said Judge Michael Murphy as he pronounced the sentence at the conclusion of Patrick Macchione's 3+ hour sentencing hearing yesterday.

Macchione pled in December, 2011 to the following charges:

• (1) count of written threats to kill or do bodily harm; 
• (1) count of aggravated stalking after injunction; and
• (17) counts of violation of injunction.

Background

Macchione's victim's nightmare began in the spring of 2009 when she accepted a facebook "friend" request from the defendant after having briefly met him at UCF.  When the tone of his messages became increasingly sexual, she "unfriended" him. He then began his relentless pursuit of her with hundreds of emails and phone calls - directly and indirectly.

She asked him to stop, but the harassment continued.  Law enforcement told her they could not do anything because they didn't know where he was.

The victim filed for an injunction for protection in June, 2009 and was granted one for 10 years the following month.

Shortly after the imposition of the injunction, the defendant posted numerous YouTube videos of an angry, threatening, sometimes sexual, nature and sent the links to her friends (whose contact info he presumably collected while he and the victim were facebook friends), asking them to watch them.  Those friends, in turn, contacted her to advise her of their existence.

The videos that were played in court would leave anyone terrified for their safety. In them he is obviously delusional and mentally ill. He insults and degrades her, insists that he will make her happy, and repeatedly demands that she meet with him and look him in the eye. They progress to tell her it's up to her to meet with him in order to save her own life.

The victim testified about one video which was produced outside the restaurant where she worked. While he was filming that video, he saw her car drive by and he ran after her. No doubt, a terrifying thing to watch.

The last video, which he sent directly to the victim, had no words. Simply gestures of him pointing at the camera (i.e., the victim), pulling the trigger of an imaginary gun twice at the viewer, putting the same "gun" to his head and pulling the trigger again.

Assistant State's Attorney Michelle Latham then read a dozen or more profanity-laced and sexually explicit YouTube messages into the record. These detailed his intent to follow her home, imprison, sexually assault and torture the victim and his desire to make her his. Additional threats of self-mutilation and suicide were made.

Note: these videos and messages have been removed from youtube.

As if that weren't enough, he used Twitter to further terrorize her (@kaypee). Twitter messages are still online (warning: graphic language).


History of Prosecution
In March, 2010 Macchione's case went to trial before Judge Bob LeBlanc but was declared a mistrial after the defendant became extremely agitated and somewhat disruptive during the victim's testimony. The Sheriff's deputies and the public defenders who represented him at the time were concerned that he might harm himself with writing utensils that were on their table. The defendant attempted to plead to the bench during the middle of his trial. He was then committed to DCF to undergo mental health treatment.

After competency had been restored, he pled guilty to all charges before Judge Murphy in December, 2011.

Sentencing Hearing
Dr. Jeffrey Danziger testified that the defendant was psychotic when he was admitted to the hospital. Macchione was diagnosed with schizophrenia and medications were prescribed that restored his competency last year. His mother testified that prior to his having been sent to the hospital, she felt that her son had been lost to her. She detailed numerous pre-diagnosis behaviors that Dr. Jeffrey Danziger described as precursors of schizophrenia.

His mother told the Court that there was a history of mental illness, drug use, retreat from society, eruptions of anger that escalated (dating back to age 7 when he chased an older brother through the house with a kitchen knife), and verbal abuse.  Her son also suffered from a serious auto accident at age 17 wherein spinal injuries paralyzed him for several months. For a short while, he did well as a student at USF, but after transferring to UF he dropped out of school, gave away his belongings and became homeless. She testified that after he received the proper medications at the hospital, she began to see a dramatic improvement in his condition and she had hope for the first time in many years. She told the judge that it has been comforting to know that he's safe in jail and offered a heartfelt apology to the victim and her family for the hell that they've endured.

Macchione's attorney, Michael DiCembre, did an effective job of showing the judge that, in the words of Dr. Danziger "this was mental illness, not evil doing." He also provided witnesses to testify to post-incarceration treatment programs that would be suitable for his client.

The State provided documentation to the judge that DOC is equally capable of providing the treatment that the defendant so desperately needed.


The Sentence
The State's original plea offer in this case was 5 years DOC + 10 years probation (this was prior to adding the most egregious charge while he was hospitalized - Written Threats to Kill, which carries a 15 year sentence). The maximum possible sentence for the charges to which he pled would have exceeded 35 years if all counts ran consecutively to one another.

The defendant, at time of sentencing, had already spent over 2 years in custody.

The judge, having found that the mitigating factor of mental illness allowed a downward departure from the sentencing scoresheet's recommended sentence, ordered:

• 48 months DOC with credit for the 2 years 78 days time served
• followed by (1) year of Community Control Level 2 (the most restrictive type that includes GPS monitoring)
• followed by (2) years of Community Control Level 1
• followed by (13) years of County Probation
• no contact with the victim
• comply with the injunction
• no use of computer with internet except under supervision while in DOC, allowing him to communicate only with his family

In addition to the standard conditions of Community Control and Probation, the defendant was ordered to:

• a residential treatment program as long as medically required or until further order of the court
• comply with medical/drug regimen prescribed
• random drug testing to assure compliance

When the judge asked Ms. Latham if there were any other conditions of release that ought to be included, knowing that she wanted more DOC time, she pointedly asked him to state the reason for the downward departure (of about 2 months). She pressed further and asked, "you find under the totality of the circumstances that you should do so?" 

He replied yes.

Judge Murphy noted that under the circumstances the sentence is appropriate for the duration of the time that the offenses occurred. That it was a first offense - albeit a serious one. He then admitted that "If I was the victim, I would certainly not be happy." 

He stated that the defendant satisfied the legal requirements for this sentence and that without the mental illness factor, Macchione would have likely been sentenced to 15 years or more in DOC for this case. He noted that even though many people in prison have psychological issues, that's not where they all belong, and that the defendant had responded to treatment in a positive manner.

Judge Murphy further noted that once he is released, he will be on the most restrictive level of Community Control. The judge commented that if Macchione is going to violate the terms of his release, it would most likely be during that first year when he's on GPS. The State could then prosecute him for Violation of Community Control and he would have the 15 year DOC sentence hanging over his head. He said:

"There is no possible way that the victim will be in harm's way during that period of time because they [Community Control] will let her know. Once she knows where he'll be residing she can make sure to make all efforts that she's nowhere around.  Or if she decides to be in the same general vicinity she'll be sure to be in constant contact with Community Control.  If there's any action by Macchione she will contact Community Control. 

"There's no way she's really at risk during that time.

No possible way that the victim will be in harm's way? No way she's really at risk during that time?

Two observations:

1. The victim must assume the burden of monitoring her perpetrator's actions, thus having to continue looking over her shoulder - probably for the rest of her life.
2. In spite of the extra precautions of GPS monitoring and the very restrictive conditions placed upon the defendant, nobody can guarantee this woman's safety. She could relocate and perhaps be physically safe from him. But what about the psychological reign of cyber-terror that she endured for several months? He very well could find her on the internet - living in the same zip code, living across the country or around the world.

I just hope that Mr. Macchione complies with every restriction that is placed upon him.

And I pray that Judge Murphy won't have to eat his words.

See report on CF News 13 for more
See report on WFTV-9 here

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There's a hero in this story too. He undoubtedly saved this woman's life.

I'll write more about him in my next posting.

Suicidal drug addict gets 15 years for trafficking

While waiting for a domestic violence sentencing to be called in Judge Tim Shea's courtroom today, I watched with incredulity as the judge was required, by Florida Statute, to sentence a man to a minimum mandatory 15 years in the Department of Corrections for Trafficking in Hydrocodone.

I agree that drug dealers ought to be held accountable for dealing drugs - especially when they target children. But Todd Michael Hannigan, age 42, was no drug dealer.

Assistant Public Defender Robert Power reminded the Court that Hannigan had been suicidal when he was picked up in a park for an open container violation in November, 2009. He had stolen 31 pills from his mother (24.5 grams) and was planning to ingest them. His original intent was to commit suicide at his ex-girlfriend's home (she had recently ended the relationship), but she came home and kicked him out. Law enforcement had been called, and because he was on foot, he was quickly located at a nearby park with a bottle of partially consumed beer.

As one officer was putting him under arrest, a witness in the park notified another officer that the defendant had dropped something on the ground. The second officer retrieved a bag of pills.

A sensible person would think "that's only Possession - not Trafficking!" But the quantity of pills involved has been deemed by the Florida Legislature to assume that if you have that many pills on you without a prescription, you're a dealer.

Mr. Power tried unsuccessfully to argue mitigation. But there was a jury verdict and a minimum mandatory sentence that tied the judge's hands. Apparently, the legislators in Tallahassee have it all figured out. By removing any discretion from the judge's ability to sentence this defendant based on the circumstances of the case, Mr. Hannigan loses his freedom for the full 15 years (no gain time permitted) and the taxpayers will foot the bill.

I would say it's a lose-lose situation all the way around.

Florida Statute 893.135(1)(C) states:
Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(1)(b), (2)(a), (3)(c)3., or (3)(c)4., or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as "trafficking in illegal drugs," punishable as provided in s. 775.082, s. 775.083, or s. 775.084. If the quantity involved:


a. Is 4 grams or more, but less than 14 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $50,000.

b. Is 14 grams or more, but less than 28 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 15 years, and the defendant shall be ordered to pay a fine of $100,000.


c. Is 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.

There's got to be a better way to handle cases of this nature. A judge's hands should not be tied by Tallahassee when mental health issues are involved. Send this blog to your senator and representative in the legislature and ask them to re-visit this part of the Statute.

Finally, CourtWatch wonders what compelled the State to go for the jugular on this case.

At the conclusion of today's hearing, the defendant stated "all I wanted was treatment - this won't help me at all." Judge Shea showed obvious concern for the defendant and was clearly frustrated with what the law required him to do.

A Notice of Appeal was filed on his client's behalf by Mr. Power.  But unless the law changes, it looks like Mr. Hannigan is stuck with the full 15 years.

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PS: Mr. Hannigan's sentencing scoresheet totaled 91.6 points, 74 of which belong to this offense. Were it not for the minimum mandatory sentence, he would have scored 47.7 months (with eligibility for gain time). Previous convictions were primarily theft related. Defendant has no convictions for crimes of violence.

PPS: It would seem to CourtWatch that the legislature never took into account that someone with mental health issues might use a large quantity of drugs to commit suicide. Dr. Jeffrey Danziger was prepared to testify that the defendant suffered from clinical depression, but because there was no opportunity (by law) to hear mitigating factors, Judge Shea did not hear his report.