Former Morgan County Judge-Executive Tim Conley is seeking a new plea hearing in his federal corruption case in hopes of getting a lower sentence.
Conley, 50, pleaded guilty last year to mail fraud in a scheme in which he shook down a contractor for $130,000 in kickbacks.
U.S. District Judge Gregory F. Van Tatenhove sentenced Conley to seven years and three months in prison.
However, Conley's appellate attorney, Jerry Anderson, filed a motion Friday asking that his guilty plea be set aside and a new hearing scheduled for Conley to re-enter a guilty plea.
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If the U.S. 6th Circuit Court of Appeals rules for Conley, he could argue for a lower sentence during the new proceedings.
The appeal argues that Conley did not understand each element of the mail-fraud crime on which he pleaded guilty.
One element is that Conley had a specific intent to commit fraud and used the mail to further the crime.
The charge on which Conley pleaded guilty said he sent a letter to the state in August 2013 seeking funding for three bridges, and that he had extorted $45,000 in bribes from the contractor for those projects.
It's not clear Conley understood he was admitting he intended to use the mail to commit the fraud, according to his appeal motion.
"Conley did not admit he intended to commit a fraud when he mailed the letter requesting funds for various bridges," according to the motion Anderson prepared.
The motion also argues that federal prosecutors breached Conley's plea deal by seeking a sentence higher than the maximum outlined under advisory federal guidelines.
Conley faced a half-dozen charges but agreed to plead to one. That is common in federal criminal cases.
The federal court system uses a point system to come up with a potential sentence in a criminal case. It considers a variety of factors such as a person's criminal record and the amount of money involved in the crime.
In Conley's case, the guidelines set out a sentencing range of five years and 10 months on the low end to seven years and three months — 87 months — on the top end.
The guidelines are advisory, however. Federal judges often sentence people within the calculated range, but they don't have to.
Conley agreed not to appeal a sentence of 87 months or less.
After Conley pleaded guilty, however, prosecutors asked Van Tatenhove to sentence him to more than 11 years.
Assistant U.S. Attorney Andrew T. Boone argued the longer sentence was justified because Conley's conduct was especially egregious.
One reason was that he demanded kickbacks from the contractor in the wake of a March 2012 tornado that killed six people in the county and caused widespread damage, Boone said.
"He took at least $90,000 in kickbacks during a time when many of his constituents were rebuilding their lives from rubble," Boone said of Conley.
Boone also argued that Conley initiated the kickback scheme, that he kept at it for years, and that his demands grew larger over time.
And Boone said that even after Conley got caught, it seemed he and others around him were unwilling to accept his actions were wrong.
Conley refused to resign as judge-executive — continuing to collect his salary while awaiting sentencing — and his name was on the November 2014 ballot for re-election to a fourth term. His wife and mother took out an ad urging people to vote for him, but Conley, a Republican, did not win.
Defense attorneys, however, argued Conley should receive a sentence under the low end of the recommended range, in part because he used much of the kickback money he received to help others.
Conley gave money to cancer patients and people who were out of work, donated $10,000 to pay utility bills for people after the tornado, and paid $15,000 for an appreciation dinner for people who helped with cleanup after the disaster, according to his appeal motion.
Conley was a churchgoing man who visited the nursing home regularly and worked hard for his county, but got caught up in being the person others looked to for financial help and took kickbacks to help sustain that, one defense attorney said.
The judge turned down both prosecution and defense motions and sentenced Conley to 87 months in prison.
Van Tatenhove said at sentencing that he gave Conley credit for good things he'd done.
But Boone's argument for a far longer sentence swayed the judge to sentence Conley at the top of the recommended range, his appeal argues.
Conley received a longer sentence than he would have if the starting point for that credit had been 87 months, the motion says.
The contractor involved in Conley's case was Kenneth Gambill. He had a company called PBTHNOJJ Construction, which stood for Praise Be the Holy Name of Jesus and Jehovah Construction Inc.
In the kickback scheme, Conley opened bids on county bridge projects in private and changed Gambill's bids to make sure PBTHNOJJ Construction won the contracts. Then Conley took part of the payment.
Conley took kickbacks on at least 14 bridge jobs from 2009 to 2013. Gambill and his wife, Ruth, pleaded guilty and were sentenced to home detention.
Conley's appeal also argues that Van Tatenhove should not have ordered Conley to pay a total of $130,000 in restitution to the state and county on the bridge projects because the projects were completed.
"The work was done, and done at the lowest bid," Anderson said in an interview. "There was absolutely no loss in this case to the government."
U.S. Attorney Kerry Harvey's office declined to comment on Conley's appeal arguments. The office has until Nov. 30 to respond formally in court.
Conley reported to prison this year. He is in the federal prison in Beckley, W.Va., with a projected release date of July 15, 2021, according to the U.S. Bureau of Prisons.