A Blair County judge has been ordered to resentence a repeat drug offender because her initial sentence of 17.5 to 35 years in prison, imposed two years ago, has been deemed “unreasonable” by a three-judge panel of the Pennsylvania Superior Court.

Judge Jackie Bernard sentenced Michael Forshey, now 41, of Hollidaysburg, to that lengthy prison term on May 13, 2021, following his conviction by a jury on charges of possession with intent to deliver, recklessly endangering another person, criminal use of a communication facility and possession of fentanyl-laced heroin, which led to the death of 46-year-old Ronald Baker of East Freedom.

Police charged that Baker died on April 2, 2018, after receiving a small plastic bag containing 0.2 grams of heroin laced with fentanyl from Forshey.

In performing the autopsy, Dr. Harry Kamerow, a forensic pathologist, testified that Baker died from an overdose of opioids and that his blood contained not only heroin and fentanyl but an unexplained amount of methamphetamine.

The jury found Forshey was not guilty of drug delivery causing death.

The Blair judge in sentencing Forshey declared he was a danger to the community, noting his conviction in the Baker death was his ninth for possession with intent to deliver.

Bernard also took into consideration that Forshey had 24 prior confinements, 35 prior convictions for multiple offenses, that he had received 35 paroles and 15 prior probations and that he had completed drug treatment programs in a county prison and a state correctional facility.

At the time of his arrest, he was also on parole and was a participant in yet another treatment program in Cambria County.

Bernard indicated that there was a need to protect society and that the state sentencing guidelines concerning the Forshey case “did not adequately account for confinement and supervision required for the safety of the community.”

In her sentencing scheme, she imposed 15 to 30 years on the charge of possession with intent to deliver.

It was that portion of the sentence that caught the attention of the Superior Court panel that included Judges John C. Bender, Victor P. Stabile and Dan Pellegrini.

The longtime judges pointed out that Forshey was convicted of selling 0.2 grams of fentanyl-laced heroin and that the state sentencing guidelines recommended only a standard range sentence of 21 to 27 months.

One of Forshey’s appeal issues was that the court had abused its discretion by imposing a sentence so far above the standard range.

The appeals court panel stated that trial courts have “broad discretion to which we must defer, but broad discretion does not mean unfettered or unchecked discretion.”

A sentencing court, it explained, must consider protection of the public, the gravity of the offense committed and the rehabilitative needs of the defendant.

But the panel stated sentencing above the guidelines is rare (about 2% of the sentences in Pennsylvania).

It concluded that reviewing the discretion used by a sentencing judge is difficult.

What is “reasonable”? When has a line been crossed? The court then answered its own question by noting: “Nonetheless, the line has been crossed here because the reasons given for the enhanced sentence are insufficient to justify the sentence imposed for an offense of selling 0.2 grams of illegal drugs.”

At the time of Forshey’s offense in 2018, fentanyl was not recognized as a dangerous drug — as is it today — and even with the enhanced guidelines now in place for fentanyl, Forshey’s sentence would be only 48 months.

This is much less than the 180 months imposed in the judge’ sentence on the possession with intent to sell offense, the appeals court stated.

The court recognized Forshey’s long criminal history, but it went on to explain that the fact he was paroled and placed on probation so many times indicated he was not considered a violent offender.

“Instead, (his) crimes mainly involved him selling small amounts of drugs or engaging in minor crimes to support his habit.”

The Superior Court continued: “The inescapable conclusion is that Forshey is an intractable addict who is unable to kick the habit, sells drugs and commits other minor crimes to support his addiction but is not a serious threat to the community.

“While sentencing above the guidelines was justified, none of those reasons (by Judge Bernard) justified sentencing Forshey seven-and-one-half times above the guidelines,” according to the 35-page opinion written by Pellegrini.

Forshey, through his attorney, Zak Taylor Goldstein, also challenged Forshey’s conviction, contending the evidence was insufficient (no one actually witnessed the exchange of drugs and money between Forshey and Baker) and that the cellphones police used to trace the sale should have been suppressed under the Fourth Amendment to the Constitution (due to an alleged illegal search of the phones by police).

Those two arguments were rejected by the panel.

The panel vacated the judge’s sentence and will return the Forshey case to Blair County for resentencing.