Jon Campisi Oct. 2, 2013, 2:05pm


It appears as though convicted child rapist Jerry Sandusky will be spending

the next three to six decades in state prison after all.

A state Superior Court panel this week upheld Sandusky’s Oct. 9, 2012, 30-to-60-year prison sentence, which followed his June 2012 conviction on 45 counts of child sexual abuse.

An appeals attorney representing Sandusky, the former defensive coordinator for the Penn State Nittany Lions football team, had argued that the defense team hadn’t been given enough time to properly prepare for trial and that prosecutors made improper reference to the fact that Sandusky chose not to testify in his own defense.

The former assistant football coach, who molested eight young boys over a 13-year time period, made national and international headlines after his high-profile arrest.

In an October 2 opinion, Superior Court Judges Jack Panella, Sallie Updyke Mundy and William H. Platt determined that the conviction and subsequent sentence out of Centre County Common Pleas Court was proper.

On the claim that Sandusky was prejudiced by a prosecutor’s comment regarding the fact that the defendant declined to take the stand in his own defense at trial, the appellate panel determined that the trial court had properly concluded that the prosecutorial comment was “fair rebuttal.”

The appeals judges also pointed out that the trial judge told jurors that a criminal defendant has no obligation to testify or present evidence in his own defense.

Sandusky didn’t move for a mistrial at the time, the Superior Court opinion states, rather he only lodged an objection.

“As such, this claim is not preserved for appellate review,” the appellate judges wrote.

Sandusky’s appeals lawyer, Norris Gelman, had also argued that the trial court’s refusal to grant a continuance deprived Sandusky of his Sixth Amendment right to the effective assistance of trial counsel.

The error, Gelman had argued, constituted a structural defect requiring automatic reversal of the judgment of sentence under the U.S. Constitution.

The Superior Court judges, however, stated that Gelman’s “novel argument fails.”

Few constitutional errors qualify as a structural defect, the judges wrote.

Gelman could only raise this argument, the judges wrote, if Sandusky was completely denied counsel, if he was denied the right of self-representation, if he was denied the right of a public trial, and if he was denied the right to a trial by jury whereas reasonable doubt instruction is concerned.

“None of these claims is at issue in this case,” the appellate court’s opinion states. “Stripped of the structural defective artifice, Sandusky’s claim, at its core, is that the trial court erred in denying his continuance requests and that that decision denied him his Sixth Amendment right to the effective assistance of counsel.”

On the argument that defense attorneys should have been given additional time by which to prepare for trial – they had reportedly received close to 12,000 pages of documentation, including Grand Jury transcripts and subpoenas, as well as other supplemental discovery materials – the Superior Court again found no constitutional error and no abuse of discretion on the part of the trial judge in denying continuances.

“Assuming for the sake of argument, however, that the trial court did commit an error in denying the continuance requests, we would find the error harmless,” the judges wrote.

The trial judge, John Cleland, had written that he had balanced and considered all of the interests involved, including Sandusky’s right to a fair trial, the victims’ right to their day in court, and the commonwealth’s obligation to prosecute promptly, and determined that no date would have presented a better alternative than the June 5, 2012, trial start date.

“The trial court’s explanation denotes a careful consideration of the matter,” the appellate court opinion states. “The decision does not reflect a myopic insistence upon expeditiousness in the face of Sandusky’s request; it was not an arbitrary denial.”

In the end, the appellate panel, in its 19-page decision, affirmed both the trial court’s conviction and sentence.

There was no word on whether Gelman would appeal the decision to the Pennsylvania Supreme Court.

At trial, Sandusky’s lawyers had argued that the victims delayed their reporting of the crimes because the abuse never actually occurred, and they created their stories for financial gain.

The case helped call attention to the fact that Pennsylvania, at the time, remained the only state in the nation in which expert testimony was prohibited in sexual assault cases.

The month after Sandusky’s conviction, Gov. Tom Corbett signed into law a new measure allowing such testimony to be given in rape trials.

The proposal, H.B. 1264, was sponsored by State Rep. Cherelle Parker, (D-Phila.), and State Rep. Kate Harper, (R-Montgomery).

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