AGO declines court order in ex-Joeten worker theft case

The Attorney General’s Office wants to push through with its plea agreement with a former Joeten Enterprises worker who has admitted stealing $11,000 from the company.

Chief prosecutor David W. Hutton declined an order by the Superior Court to move to set aside the plea agreement that the government has entered into with Lorenzo A. Barcinas.

The court issued the order after it received new information that Barcinas had been convicted of bank fraud in 1991 and was sentenced to probation and ordered to pay restitution.

But Hutton said, “It would not only be contrary to our rules, case law, and the defendant’s rights, but an appearance of bad faith on the part of the Commonwealth to file a motion to set aside the plea agreement, and ostensibly the defendant’s guilty plea and sentencing under the present circumstances in this case.”

Records showed that Barcinas was charged with theft and theft by deception for illegally taking $11,000 from his former employer, Joeten Enterprises, between Oct. 2, 1999 and Dec. 6, 1999.

On June 17, 2004, a plea agreement was reached between the government and Barcinas. Under the agreement, Barcinas was given a three-year suspended prison term sentence and placed on probation for the same length of time. He was also ordered to pay all court costs and probation fees, as well as all restitution to Joeten.

“The Commonwealth entered into the plea agreement due in part to the age of the case, related evidentiary issues, the defendant’s lack of any prior local criminal history or convictions, and due to the victim’s primary concern that they recover the money stolen by the defendant,” Hutton said.

On July 6, 2004, Judge Kenneth Govendo accepted the defendant’s guilty plea, and the recommended sentencing disposition of the plea agreement.

But the following day, Govendo apparently learned of Barcinas’ prior federal conviction, which was confirmed by the National Criminal Information Center.

Govendo subsequently ordered AGO to file a motion to set aside the plea agreement, as he had not issued a final written judgment of the conviction and sentence.

According to the judge, he would not have accepted the plea agreement had he known about Barcinas’ federal criminal conviction. He added that Barcinas should not be able to take advantage of the local prosecution’s oversight or omission about requesting a courtesy NCIC check, and implied that Barcinas “tried to get one over the court.”

Hutton asked Govendo to reconsider his order, noting that the law does not give the court the authority to set aside a plea agreement such as the one entered into by the AGO and Barcinas.

“With much respect and deference to the court, it is not nor has it ever been the Commonwealth’s intent to arbitrarily and willfully refuse to comply with this court’s order in the instant case, but to abide by the Commonwealth’s duties and obligations under the law to protect the community and safeguard the rights of victims, as well as the fundamental rights of criminal defendants in the interest of the fair administration of justice,” Hutton said.