Dec 2, 2004 By Jennifer Harr 4 min read

The attorney for a Uniontown man convicted of aggravated assault argued Wednesday that a Fayette County judge wrongly considered his lengthy juvenile criminal record when he was sentenced. Judge John F. Wagner Jr. sentenced Kendrick Maurice Pratt, 24, to 10 to 20 years in prison for shooting Alan Scott Hixenbaugh in the head with a sawed-off shotgun in September 1996.

Pratt shot Hixenbaugh in the Bierer Wood Acres housing project after Pratt asked if he wanted to buy drugs. Pratt is seeking to have his sentenced reduced.

During the sentencing hearing in 1998, Wagner said he considered the seriousness of the crime, as well as Pratt’s juvenile record – which stretched back to 1991 and included simple assault, terroristic threats and conspiracy to commit cruelty to animals – in determining the prison term.

But Pratt’s attorney, Thomas Shaffer, argued that a June decision by the U.S. Supreme Court made Wagner’s sentence illegal because Pratt’s prior juvenile convictions were not put before jurors.

Under the decision of Blakely v. Washington, the Supreme Court held that no sentence can be enhanced beyond the statutory maximum for an offense unless a jury finds the facts that lead to it. The Blakely ruling applies only to Washington state sentencing guidelines, but it has led to questions about sentencing in other states.

“Blakely doesn’t allow (considering Pratt’s juvenile convictions) because it wasn’t before a jury,” Shaffer said.

But Wagner said, and Shaffer acknowledged, that the sentence imposed was legal. At the time he sentenced Pratt, Wagner indicated that Pratt’s juvenile convictions were not considered under the sentencing guidelines, but rather as background in determining his sentence.

After he heard Shaffer’s argument that the Blakely ruling necessitated that jurors find that Pratt’s prior record should be considered in sentencing, Wagner disagreed.

“That’s not even close to what Blakely says,” the judge said, noting he would rule on Shaffer’s claim at a later date.

First Assistant District Attorney Joseph M. George Jr. said he also disagreed with Shaffer’s interpretation of the Blakely decision. George said he believed the decision dealt with situations that arise in, for example, drug cases. During those cases, jurors must determine the amount of drugs involved in a case before a judge can impose a sentence based on the quantity of drugs, George said.

“All the court has to do is consider the guidelines and make a departure statement on the record,” George argued.

Judges typically make departure statements when giving defendants sentences that exceed normal guidelines. That statement explains the judge’s reason for issuing a higher sentence.

George called Shaffer’s arguments “a stretch,” and said the claim was waived because too much time had passed.

At his 1998 sentencing, Pratt himself expressed disdain that Wagner considered his juvenile record. In an expletive-peppered tirade, Pratt told Wagner that his juvenile record had nothing to do with the assault on Hixenbaugh. He also threatened then-prosecutor and now judge Steve P. Leskinen.

“I ain’t got life. Remember that,” Pratt told Leskinen as he was led from the courtroom nearly six years ago.

Shaffer also presented a claim that Wagner did not consider Pratt as an individual in sentencing him. The attorney said Pratt was 14 and on PCP and marijuana when he shot Hixenbaugh. He was also in and out of mental institutions five times between the age of 9 and a short time before he shot Hixenbaugh in 1996.

The stays in mental institutions weren’t included in the pre-sentence report prepared by the county’s adult probation office, Shaffer said. That report goes to the judge to consider in sentencing.

Pratt claimed through Shaffer that he told an adult probation officer that he had been in mental institutions, even though that information was not included in the report.