Attorneys for former Altoona police officer Duane "D.J." Eichenlaub, serving a prison term for a 2010 bar brawl, said Monday the sentencing judge missed the opportunity to award the victim restitution, meaning that 60-year-old Earl Eshelman may not receive almost $10,000 for his out-of-pocket medical expenses.
Eichenlaub is serving 11-23 months in jail for aggravated assault of Eshelman.
Eshelman and members of Eichenlaub's family attended what was supposed to be a restitution hearing on Monday afternoon in Blair County Judge Timothy M. Sullivan's courtroom. Eichenlaub indicated he didn't want to attend.
Lindsay Malloy of the victim-witness program in the district attorney's office documented a list of expenses that Eshelman had to pay because they weren't covered by insurance.
Eshelman claimed during Eichenlaub's trial those expenses came to about $22,000, but the list presented to Sullivan totaled only $9,970 paid to Northern Bedford Pharmacy and UPMC Bedford Memorial Hospital.
Eichenlaub's Harrisburg attorneys, Tim M. Barrouk and Theodore C. Tanski, claimed that Sullivan missed the opportunity to impose restitution.
When Eichenlaub came before Sullivan for sentencing on May 28, the judge imposed the prison term and placed Eichenlaub on three years' probation but set $1 as the amount of restitution in the case.
The judge did this because Eshelman's out-of-pocket expenses had not been documented, and he gave the victim 30 days to submit a list.
The $1 temporary restitution order was not unusual in Blair County. Blair judges often give victims time to submit restitution figures.
But the defense attorneys took turns arguing to the judge that restitution must be set at the time of sentencing.
They said that an "open restitution order is illegal."
Case law, they stated, "plainly requires a restitution determination take place at sentencing," according to a petition submitted by the defense to the judge.
They also argued that Sullivan had no jurisdiction to impose restitution because the Eichenlaub criminal case has been transferred on appeal to the Pennsylvania Superior Court. The defense contends there wasn't enough evidence presented during trial to support the aggravated assault charge.
Deputy Attorney General Christopher Jones supported Sullivan's handling of the restitution issue. He argued that restitution is not a civil court matter but is to be a form of punishment for a criminal act.
"I think the court fulfilled those obligations," he said.
Sullivan took the case off the bench to review the arguments by both sides and said he would issue an opinion within a week.
The case involving Eichenlaub and another former officer, Eric Kriner, began on Memorial Day 2010 when the two officers, upset that Herman "Bo" Lardieri allegedly had improperly touched Eichenlaub's wife in an Altoona bar, followed Lardieri into the men's room and pummelled him.
Eshelman was in the restroom and tried to break up the fracas, according to testimony, at which point Eichenlaub hit him repeatedly on the on the head and face.
The 60-year-old suffered severe injuries to an eye and said he still experiences dizziness, memory loss and anxiety and needs ongoing medical treatment.
While the defense is appealing Eichenlaub's conviction, Jones has appealed Sullivan 11-month sentence, which is well below the jail time recommended by Pennsylvania's sentencing guidelines.