Victims upset by assault sentence

Couple pinned, injured by truck in 2007 incident

Friday, July 10, 2009

Robert Anthony Mister, 37, of Lexington Park entered a plea of second-degree assault and was granted a withdrawal of his November 2008 first-degree assault plea. The charges stemmed from Mister using his truck to push and pin Raymond Tomco of Solomons by his waist to a wall, causing serious life threatening injuries, according to court records.

Mister was sentenced July 6 to 10 years with all but 18 months suspended and with work release authorized. He was also sentenced to five years of supervised probation in the Calvert County Circuit Court by Judge Marjorie Clagett.

"I feel that justice was not served and neither does my husband, Mr. Tomco," said Dale Tomco, who was pinned between two trucks, causing her two breaks in her hip.

"He got work release, what kind of punishment was that? I don't feel justice was served because [Clagett] went under the [sentencing] guidelines. To me, he got a slap on the wrist," Tomco said.

Assistant State's Attorney Jennifer Morton, who prosecuted the case, said the maximum penalty for a guilty plea to second-degree assault is 10 years, and sentencing guidelines for Mister calculated out as four to eight years. Morton declined to comment as to whether she was satisfied with the judge's decision of suspending eight and a half years of Mister's sentence or the withdrawal of the original plea.

Mister's original plea of first-degree assault holds a 25-year maximum, and in the first-degree assault plea agreement, Clagett agreed to bind the court to no more than 12 years incarceration time, according to the court transcript.

State law provides maximum sentences for particular offenses, and sentencing guidelines are calculated through a worksheet which includes items such as a defendant's prior convictions, the seriousness of the crime and the victim's injuries, but the sentence is up to the judge's discretion.

Morton said that the state agreed to his plea to the lesser charge of first-degree assault, foregoing the heftier attempted murder charges.

"We would have to prove intention, and that was one of the issues," Morton said of first-and second-degree attempted murder charges in Mister's original indictment. 

According to court records, Mister and Wayne Curtis Jones, 24, of Leonardtown got into an argument with Raymond and Dale Tomco in front of the their Creston Lane residence in Solomons around 10 p.m. on Sunday, May 13, 2007, which was Mother's Day. The argument escalated and Dale Tomco tried to get Mister to leave, but he pushed her away and lunged at Raymond Tomco, who raised a bat at Mister, according to court records.

Mister and Jones then got into their Ford F-150 pickup truck, with Mister at the wheel, and drove twice toward the Tomcos, hitting both of them the second time, according to records. Raymond Tomco became pinned against the wall of the residence at his waist, causing serious injuries, the records state, and Dale Tomco was caught on the side view mirror of the truck and was sideswiped against a another truck. Tomco was initially flown to the hospital and deemed in critical condition due to blood loss, a broken pelvis and bruises.

Dale Tomco, who was treated for her injuries at Calvert Memorial Hospital, said her husband has plates in his pelvis and spent more than three months in rehabilitation learning to walk again.

"He lost so much blood, I have to thank God he's alive," she said.

According to court transcripts of Mister's first-degree assault plea, Morton stated evidence from Raymond Tomco's treating physician would show "injuries were life threatening." Mister's attorney during the initial plea, Gregory Gardner of Washington, D.C., stated he "agreed the state's evidence could support a basis for first-degree assault."

Clagett stated during the plea agreement that a fractured pelvis is "certainly a serious injury," and coupled with testimony from Tomco's doctor regarding his injuries being life-threatening, she agreed to the plea after Mister answered "yes" to a series of questions about understanding his rights and his plea.

Mister's original July 2007 indictment included first- and second-degree attempted murder and first-degree assault. Mister changed his lawyer several times and the trial date was scheduled four times at the request of the defendant before his Nov. 24, 2008, guilty plea. His sentencing was scheduled three times, court records state.

Prior to his July 6, 2009, sentencing date, Mister hired as his attorney Thomas Mike V. Miller Jr., the Maryland Senate majority leader, who asked the court to withdraw Mister's guilty plea of first-degree assault on June 25, court records state. Miller's motion stated that he spoke with Gardner, his attorney during the plea, "who indicated that the defendant firmly believed in his innocence, however, was motivated of a greater punishment to plead guilty."

Miller also said that the victims, the Tomcos, "do not object to the withdrawal of this plea and, in fact, have settled this case based on negligence, not intent." Miller also stated that intent is an element of first-degree assault and that "the defendant was entitled to know about the settlement prior to taking the plea."

Morton opposed the withdrawal of the plea, citing that Mister "clearly knew what was going on and was voluntarily entering a guilty plea to first-degree assault."

Morton's motion also stated the main reason Raymond Tomco did not object to the withdrawal of Mister's plea and allowing him to enter a plea to second-degree assault was "because they are frustrated by the numerous delays in this case and want to put it behind them." The victim's sense of justice and faith in the system was frustrated to the point where they are not objecting to the withdrawal of the plea, but the withdrawal of the plea would not serve the interests of justice, Morton's stated.

Miller did not immediately return a call seeking comment.

charvat@somdnews.com