By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
By Michael Roberts
By Michael Roberts
Unbeknownst to the district attorney, however, Komesu was working as a druggist at a major Denver hospital even while his attorney negotiated his fate--and even after he pled guilty.
The DEA had notified the Colorado Board of Pharmacy of Andrew Komesu's arrest shortly after it occurred. And on June 17, 1994, the board moved to summarily suspend Komesu's license. But according to board spokesman Lansin Carmean, the necessary paperwork was not drafted and served until July 14--four days after Komesu was hired on as a pharmacist at Presbyterian/St. Luke's Medical Center in Denver.
When Komesu applied for the position, says hospital spokesman Brad Bawmann, "we did the appropriate background and license checks, and he was clean." But, Bawmann adds, Komesu never mentioned that he'd been arrested and charged with stealing more than two gallons of morphine.
Komesu claims he checked on the status of his license before accepting the job at P/SL and that he was told it had not been suspended.
P/SL officials did not learn of Komesu's legal difficulties until mid-October, when a Fort Morgan reporter (who'd been checking out a tip about Komesu) informed them that the pharmacist had pled guilty to--and was awaiting sentencing on--25 felonies. Komesu was immediately sacked. And when the DEA got wind of the situation (at about the same time as the hospital learned of the charges against him), the federal agents arrested Komesu on a misdemeanor charge of practicing pharmacy without a license. (Bawmann says that Komesu was a "model employee" during his four months there and that a subsequent inventory of supplies did not turn up any drug shortages.)
Many drug abusers enter treatment programs shortly after arrest--it looks good to a judge. But Komesu did not enter rehabilitation until December 21, just three weeks before his initially scheduled sentencing date, despite his attorney's claim at a bond-reduction hearing in May 1994 that Komesu "is fully aware of his need to enroll in a drug rehabilitation program as soon as he is released."
Despite his short enrollment in a California-based treatment center, his supervising physician gave Komesu a rave review. "He is making extremely good progress in dealing with his addiction," wrote Dr. Robert Saltzman in a January 2 letter to the court. "He is very active in the treatment program and plans to return to work as soon as possible. I would be happy to assist Andrew find work as a pharmacist in any way I can."
Because the treatment he'd chosen involved a ninety-day residential portion, Komesu asked the court to postpone his sentencing so he could complete the term. The judge balked--it was already four months after Komesu's guilty plea--but the sentencing was reset to late February, anyway, due to a technicality.
Judge Douglas Vannoy did his homework before sentencing Andrew Komesu, but some people in Fort Morgan would probably flunk him for it.
At the long-delayed sentencing hearing, held on February 24, Vannoy expressed concern that probation was not being offered as an option for Komesu. The judge said he'd inspected 25 Morgan County drug cases, 23 of which involved plea bargains. Probation was guaranteed in eleven of them; nine defendants had been granted deferred judgment. In only three cases, Vannoy noted, were the defendants ordered to do prison time; sentencing of the remaining two was left to the judge's discretion.
According to state law, judges have no duty to accept a plea bargain. They are, in fact, directed to exercise independent judgment in deciding whether to grant charge and sentence concessions. But it is incumbent on the judge to let the attorneys know if he disagrees with the plea agreement, says Hefty. That never happened.
Despite his stated reservations, Vannoy officially accepted the plea bargain, even though he chose to sentence the pharmacist at the low end of the previously-agreed-to range. Komesu got five years and was taken immediately to the Morgan County Jail for later transfer to the state Department of Corrections.
The plea bargain Hefty had struck did not preclude Komesu's attorney, Cohen, from asking for a reconsideration hearing. And on May 19, 1994 (little more than a year after Komesu's arrest), Cohen did just that. By that time, Komesu had spent 102 days behind bars, an amount Cohen considered a "significant punishment." Komesu had served all that time in the smaller and less grim county jail because his transfer to the Department of Corrections was delayed due to insufficient bed space in the state prison system. Nevertheless, Cohen decried the fact that the local jail offered neither rehab nor the same privileges available to inmates in the Big House.
Judges routinely deny requests for reconsideration hearings. Vannoy did not. And it was when the judge set a date for the hearing, Hefty says, that he knew what was going to happen next.
On July 3, Komesu, Cohen, a probation officer and Deputy District Attorney Deborah Shutter gathered for the hearing. (Hefty, who'd broken his leg, was unable to attend.) No one from the press, the police or the DEA was present, a fact the judge would stress in his ruling. At the initial sentencing, Vannoy noted that in the July hearing, "I had the chief of police; I had Lieutenant Forbes; I had representatives of the hospital. Now I've got nobody here. Now, that doesn't change my view of the case, but I think it's interesting to note that." (Shutter was given a short recess to contact the police department to see if anyone wished to attend; Sergeant Kuretich then rushed to the courtroom. The sergeant, however, was not called to comment on the case.)