Court: Former councilman doesn’t have to begin jail term this week
The state Superior Court said Friday former Allegheny County Councilman Charles McCullough does not have to report to start serving his 2½- to 5-year prison sentence on Monday, despite an order from the trial judge to do so.
Common Pleas Judge David R. Cashman issued an order on Tuesday asking McCullough, who has remained free on bond pending appeal since he was sentenced in November 2015, to report to his courtroom at 9 a.m. on Monday to begin his incarceration.
The next day, McCullough’s attorney, Adam Cogan, filed an application for emergency relief with the Superior Court asking that it direct Judge Cashman to rescind his order since McCullough’s appeal is still pending.
The Superior Court granted the request.
“[U]nless bail is revoked, a bail bond shall be valid until the full and final disposition of the case, including all avenues of direct appeal to the Supreme Court of Pennsylvania,” it wrote. “It is undisputed that there is no full and final disposition of this case as appellant currently has a petition for reargument pending before this court and if that is denied, has the right to seek review by our state Supreme Court. Until then, the validity of the bail bond continues through all avenues of direct appeal in our state courts.”
Further, it noted the trial court
cannot take any action on the case until the record is remanded to it.
Although the state Superior Court affirmed McCullough’s conviction on five counts of theft and five counts of misapplication of funds on March 25, he filed a motion for reargument with the same court on May 7. That motion is still pending.
McCullough was convicted of writing more than $40,000 in checks for political contributions from the accounts of Shirley Jordan, an elderly widow he represented, without her permission.
Mr. Cogan wrote to Judge Cashman on Tuesday, explaining his position, but the court was not swayed.
Instead, Judge Cashman replied that McCullough’s appeal has been exhausted.
“The fact that he has filed a motion for re-argument with the Superior Court and the request of that re-argument occur before the Court En Banc is of no moment,” Judge Cashman wrote. “These motions are not a continuation of his right of appeal. His right of appeal concluded when he took the matter to the Superior Court, and his claims were rejected by the Superior Court on March 25, 2020.”
Judge Cashman went on to say McCullough’s pending motions are not a matter of right, and instead are discretionary.
Failure to comply with his order, Judge Cashman said, would “necessitate that the sheriff of Allegheny County enforce that subpoena.”
McCullough’s attorneys argued in their emergency application to the Superior Court that Judge Cashman lacks jurisdiction to direct their client to begin serving his sentence while his appeal remains pending. They asked that bond continue through application for reargument and any petition for allowance of appeal to the state Supreme Court.
In his response, Deputy District Attorney Michael W. Streily called McCullough’s argument Judge Cashman can’t revoke bond “rather astounding.”
“Appellant isn’t saying he is entitled to a hearing. He is saying that a trial court in Judge Cashman’s position never has the authority to revoke an appeal bond,” he said.
Mr. Streily said such a ruling would set a dangerous precedent.
But in its four-page order, the Superior Court said that Judge Cashman acted “precipitously, as it was in error by concluding that Appellant’s direct appeal rights, and hence his bail bond, terminated after our decision affirming his judgment of sentence on March 25.”