Judge reduces prison term of convicted accountant

Five months after he sentenced Arlene D. Hart to 11 months in prison for stealing $6,831 from her then-employer, Superior Court Associate Judge Kenneth L. Govendo has changed his mind and reduced her prison term.

Govendo yesterday granted Hart’s motion to reduce her sentence and ordered that her release from the Department of Corrections on Sunday, Aug. 31, 2014, at 5pm.

Hart was supposed to be released on Feb. 28, 2015 under the original sentence.

“This case itself is unique in that this defendant was so ashamed by her actions that she did not even tell her family about the ongoing criminal case against her,” said the judge in his order.

He said Hart’s sisters became aware of her legal problems only after they read about her conviction and sentence in the newspaper.

At the motion hearing on Thursday, Chief Prosecutor Brian Flaherty argued that the court should deny Hart’s request to prevent other convicted criminals from flooding the Commonweal trial courts with similar motions.

The Office of the Attorney General filed charges against Hart in 2013 for stealing $6,831.66 from her then-employer Ecosource Insurance by not depositing the money into its bank account.

On March 25, 2014, Hart signed a plea deal with the government and pleaded guilty to theft by unlawful taking or disposition.

Under the plea deal, the court was given discretion to sentence the defendant to a prison term of between zero and 18 months.

Govendo sentenced Hart to 11 months in prison. Hart was incarcerated starting April 1, 2014.

On May 9, 2014, assistant public defender Matthew Meyer, counsel for Hart, filed a motion to reduce her sentence. The motion was heard last week.

Meyer stated that Hart has made full restitution, is nearly 53 years old, and had never been convicted of any criminal offense, and is now a convicted felon.

Meyer asserted that additional time in prison will not have any meaningful impact on Hart because, absent the extraordinary circumstances surrounding this crime, she is not “a bad or immoral person” and the term of imprisonment has already worked to ensure that she will never again commit such an act.

Meyer said Hart has two sons and a husband, and the newly assigned prosecutor (Flaherty) refused to honor the deal struck by the former prosecutor, Jacinta Kaipat, handling this case.

In the government’s opposition, Flaherty argued that Govendo had accepted the plea agreement and found Hart guilty.

Flaherty asserted that the judge previously considered the facts of the case, recommendations of counsel, the mitigating factors, and the plea agreement when determining the sentence.

Flaherty said all of the information currently presented to the court could have and should have been brought up prior to sentencing.

The chief prosecutor said restitution was a condition contained in the plea deal, and the court should not reward Hart for merely fulfilling an agreed upon obligation.

Flaherty said family hardship, a defendant’s good character, and a defendant’s rehabilitation are insufficient reasons to reduce any sentence.

In granting the motion, Govendo said he carefully reviewed all mitigating and aggravating factors presented during sentencing hearing and even questioned Hart to get a sense of her individual circumstances.

Hart testified that she sought assistance from her employer before stealing the money, but that she did not seek any help from her family in order to pay for her mother’s medical expenses.

Govendo agreed with Meyer that prosecutors should honor the deals struck by their predecessors, but the law of the Commonwealth does not require such action.

Here, the judge said, the prosecutor in question does not even remember the offer mentioned by Meyer.

Govendo said no deal is final until it is brought before the court, and evidence of deals on the table during negotiations in no way implicates the government in failing to honor its promises to a criminal defendant.

“Hence, this particular argument is without merit,” he said.

Govendo disagreed that a reduction in Hart’s prison term would undermine the deterrent effect on the threat of prison.

On the issue of precedent, Govendo said a single order reducing a criminal sentence is unlikely to create the response that the government articulates.

“All mitigating factors are generally presented before the sentence is issued, and it will be the very rare case where these types of acts would be presented post-sentence,” he said.

Finally, Govendo said, after obtaining permission from Flaherty and Meyer, he spoke to Kaipat, who informed him that she was originally in favor of a sentence that contained no prison time provided there was immediate restitution.

It was Kaipat’s understanding that the victim insisted that Hart serve a prison term.

Govendo said Kaipat informed him that investigator Vince Babauta had also recommended that defendant not be sentenced to prison because she had been very forthcoming and helpful in their investigation.