Opinion
No. 5 JD 11
06-24-2011
In re: Michael T. Toole Former Judge Court of Common Pleas Luzerne County
BEFORE: Honorable Patrick Judge, Sr., P.J.
Honorable Stewart L. Kurtz, P.J.E.
Honorable Joseph M. James
Honorable John W. Morris
Honorable Robert E. J. Curran
Honorable Bernard L. McGinley
Honorable Charles A. Clement, Jr.
OPINION BY JUDGE JUDGE
I. INTRODUCTION
The Judicial Conduct Board ("the Board") filed a Complaint with this Court on April 13, 2011 against Michael T. Toole, Judge of the Court of Common Pleas of Luzerne County ("Respondent"). The Complaint charges that Respondent has been convicted of two felonies which constitutes a violation of Article V, Section §18(d)(1) of the Pennsylvania Constitution and that, as a consequence, he is subject to discipline under Article V, §18(d)(1) of the Constitution.
The Board and the Respondent have submitted stipulations of fact in lieu of trial under C.J.D.R.P. No. 502(D)(1) and a waiver of trial. The Court has accepted these stipulations of fact in pertinent part and takes judicial notice of the fact that Respondent has filed no appeal from the judgment of sentence entered April 8, 2011 and that more than 30 days has expired since that date.
II. FINDINGS OF FACT
1. Pursuant to Article V, §18 of the Constitution of the Commonwealth of Pennsylvania, the Board is granted the authority to determine whether there is probable cause to file formal charges, and, when it concludes that probable cause exists to file formal charges against a justice, judge, or magisterial district judge for proscribed conduct, to present the case in support of such charges before the Court of Judicial Discipline.
2. Respondent commenced service as a judge of the Court of Common Pleas of Luzerne County on January 5, 2004.
3. At a Board meeting on April 4, 2011, the Judicial Conduct Board found there was probable cause to believe that Respondent's conduct was of a nature requiring the filing of formal charges.
4. On December 2, 2009, a two-count Information was filed against Respondent in the United States District Court for the Middle District of Pennsylvania. Count 1 of the Information charged the Respondent with honest services wire fraud in violation of 18 U.S.C. §§1343 and 1346, classified as a felony, and Count 2 of the Information charged the Respondent with willfully making and subscribing a false individual tax return in violation of 26 U.S.C. §7206(1), also classified as a felony. Respondent pled guilty to Count 2.
5. On October 7, 2010, the United States Attorney's Office for the Middle District of Pennsylvania filed a Superseding Information in the case of United States of America v. Michael T. Toole, Criminal No. 3:CR-09-385, which charged the Respondent with Corrupt Receipt of Reward for Official Action Concerning Programs Receiving Federal Funds in violation of 18 U.S.C. §666(a)(1)(B), classified as a felony. On November 2, 2010, Respondent pled guilty to the Superseding Information filed at 3:CR-09-385.
6. Upon Motion by the government, the Court dismissed Count 1 of the original Information, which charged honest services wire fraud.
7. On April 8, 2011, the Honorable Robert P. Conaboy, United States Senior District Court Judge, sentenced Respondent to 30 months in prison.
III. DISCUSSION
As set out in the Findings of Fact, Respondent has been convicted of the commission of two felonies, viz., subscribing and filing a materially false individual tax return in violation of 26 U.S.C. §7206(1) and Corrupt Receipt of Reward for Official Action Concerning Programs Receiving Federal Funds in violation of 18 U.S.C. §666(a)(1)(B), and the judgment of sentence was entered on April 8, 2011 from which no appeal has been taken. The convictions, therefore, have achieved the requisite finality to warrant the imposition of discipline by this Court pursuant to Article V, §18(d)(1) of the Pennsylvania Constitution. See, In re Larsen, 746 A.2d 108, 110 (Pa.Ct.Jud.Disc. 1999), and In re Jaffe, 839 A.2d 487, 489 (Pa.Ct.Jud.Disc. 2003).
Respondent's convictions, of itself, provide the grounds for the imposition of discipline
the Pennsylvania Constitution provides:
A justice, judge or justice of the peace may be suspended, removed from office or otherwise disciplined for conviction of a felony ....Pa. Const. Art. V, §18(d)(1) (emphasis added). See, In re Sullivan, 805 A.2d 71, 74 (Pa.Ct. Jud. Disc. 2002); In re Melograne, 759 A.2d 475, 477 (Pa.Ct Jud.Disc. 2000); In re Larsen, supra at 110.
We find that the Board has established by clear and convincing evidence that the Respondent was convicted of felonies which subject him to discipline under Article V, Section 18(d)(1) of the Pennsylvania Constitution.
IV. CONCLUSIONS OF LAW
1. Respondent was convicted of subscribing and filing a materially false individual tax return in violation of 26 U.S.C. §7206(1) and Corrupt Receipt of Reward for Official Action Concerning Programs Receiving Federal Funds in violation of 18 U.S.C. §666(a)(1)(B).
2. Both crimes are classified as felonies.
3. The judgment of sentence entered April 8, 2011 is final as the time for filing any direct appeal has elapsed.
4. The aforesaid convictions subject Respondent to discipline under Article V, §18(d)(1) of the Pennsylvania Constitution.