This article has been updated to include a statement from Lebanon County District Attorney Pier Hess Graf.
Lebanon County Judge Samuel A. Kline’s recent sentencing of a nine-time shoplifter to state prison has drawn criticism from the defendant’s family and the attention of Pennsylvania Lieutenant Governor John Fetterman.
The defendant, Ashley Menser of Annville, had argued that she should not go to jail because she is being treated for cancer.
According to state records, on Sept. 10, 2019, Menser entered an “open guilty plea” – meaning there was no plea bargain accepted – to her ninth shoplifting conviction since 2007, her sixth shoplifting felony conviction.
An open plea allows a judge wide discretion in imposing any sentence up to the maximum allowed by law.
Because of her prior convictions, the latest charge was a felony carrying a maximum possible jail sentence of 10 years, even though the amount Menser admitted to stealing was just $109.63.
Under Pennsylvania’s minimum sentence guidelines, her eight previous shoplifting convictions appear to have required a minimum sentence on the latest charge of between six and 16 months, unless the sentencing judge found a good reason to go higher or lower.
On Jan. 22, 2020, Menser, with her attorney, Scot Feeman, stood before Lebanon County Judge Samuel A. Kline for sentencing.
Earlier, Feeman had given Judge Kline a Sentencing Memorandum, filed with the Clerk of Courts as a public record. It asked the judge to sentence Menser to house arrest, not jail, because she was being treated for cancer.
Feeman wrote that Menser had been diagnosed in June of 2019 with “Stage 3 . . . cancer in which [doctors] are unable to predict life span of Defendant given her diagnosis,” and that a doctor “had discussed with Defendant” surgery to remove certain organs.
One doctor’s note attached to the Sentencing Memorandum and dated Jun. 5, 2019, seven months before sentencing, said “This notice verifies that ASHLEY MENSER has . . . cancer, for which our recommended management at this point would be [surgery]. We are unable to predict life span of patient given her diagnosis.”
The doctor’s note continued “if patient chooses not to have [surgery], we would not be able to predict lifespan” and states “patient is refusing treatment at this time.”
Other medical records and doctors’ notes attached to Feeman’s memorandum referred to Menser’s cancer, but none described a terminal illness, a need for emergency treatment, or a scheduled surgery date.
Feeman himself did not claim in his memorandum that Menser’s cancer was life threatening or a present emergency.
There is no indication in Feeman’s memorandum or the attached medical records that Menser sought to schedule surgery in the roughly seven months between her diagnosis and sentencing date.
Menser asked the judge to put her on house arrest, not in jail. Although her Jan. 22 sentencing date had been announced over a month earlier, she told Judge Kline that she had scheduled an oncologist appointment for later on sentencing day.
Despite Menser’s plea for no jail, Judge Kline sentenced her to state prison for a minimum of 10 months and a maximum of seven years. But, he made her eligible for parole in as early as seven and a quarter months under a special program for non-violent offenders, known as RRR-I.
His sentencing order states “[t]he Court urges the State Correctional Facility in light of Defendant’s apparent possible physical conditions, to promptly as possible, move her to a state facility that has adequate medical treatment for her issues.”
Court records indicate that Menser will be sent to the State Correctional Institute at Muncy, which mostly houses female inmates. It was unknown at publication time if the transfer from Lebanon County to Muncy had actually occurred, although Menser is not listed in the state’s inmate database at present and according to a Lebanon Daily News source she was still at Lebanon County Correctional Facility as of Thursday.
A PA Post story on Jan. 31 reported that Menser’s mother, Stephanie Bashore, said that she and her daughter were told by an unnamed doctor that Menser would be dead in one month without surgery. It was not clear if this was a reference to the same surgery that had been recommended last June.
“She has no choice, it’s life or death,” Bashore told PA Post. “The doctors sat there and told us this.”
This “one month” claim does not appear to be directly supported by what Menser submitted to the court. None of the medical records and doctor’s notes included in Attorney Feeman’s Sentencing Memorandum, nor the memorandum itself, make statements to this effect.
Menser’s story has also caught Lieutenant Governor John Fetterman’s attention. In an early morning tweet on Jan. 31, he asked Judge Kline to reconsider sentencing Menser to jail.
Lt. Gov. Fetterman’s tweet appears to be based on the PA Post story, which does not mention Menser’s eight previous retail theft convictions, nor the mandatory minimum sentencing guidelines.
It is also unknown whether Fetterman was aware of the content of the actual medical records submitted by Menser to Judge Kline.
Reached for comment on Jan. 31, Attorney Feeman said that he plans to file a motion asking Judge Kline to reconsider his sentence.
On Saturday morning, right around when this article was first published, the New York Times became the latest outlet to cover Fetterman’s comments. Following this report, Lebanon County District Attorney Pier Hess Graf, who had been sworn into the office on Friday, shared a statement with the Times reporter and local media that read as follows:
Ashley Via Menser appeared for sentencing on January 22nd before the Honorable Samuel A. Kline on one charge of Retail Theft. The Defendant has a lengthy criminal history, which includes thirteen prior theft convictions, Welfare Fraud, and Endangering the Welfare of Children. Her Pre-Sentence report indicated she had four children at the time of sentence, however all but one were not in her custody or care. It also noted the Defendant had a history of abusing drugs.
Ms. Menser ultimately pled ‘open’ — which means the Court decides the sentence it deems appropriate. Options before the Court are dependent upon a pre-set sentencing range, determined both by the defendant’s current charge and prior criminal record. In this case, Ms. Menser’s sentencing range called for jail time, anywhere from six to sixteen months in duration.
During sentencing, the Court reviewed the Defendant’s request for house arrest in lieu of jail. The Defendant stated she had medical issues which required surgery and ongoing care. Notably, a 2019 document submitted by her own Defense Counsel indicates the Defendant on her own refused treatment.
The Court rejected the notion of house arrest given the Defendant’s extensive prior criminal record and the circumstances of the current offense. In the current case, the Defendant stole makeup, hair dye, a candle, and ‘Super Skinny Serum.’ The Court imposed a period of state incarceration in light of the above, and the simple fact the state system is far more capable of addressing serious health concerns for inmates. Defense Counsel filed a Motion to Reconsider, on which our Office will defer to the Court’s decision and thus take no position.
Our Office is aware this case, and the sentence imposed, received attention. Our Lieutenant Governor found it appropriate to criticize the Court and the victim; he went so far as to offer a personally delivered check for the underlying amount to the victim to absolve the defendant of the crime. He failed to mention in any of his tweets, however, the extensive prior record of the defendant, her drug abuse, or the fact that her sentencing ranges — as set forth by the legislature — call for jail time.
We do not often respond to media articles or comments criticizing a defendant’s sentence. I felt it necessary to respond, given the lack of accurate factual information which seem to permeate the majority of comments, articles, or ‘tweets’ about Ms. Menser and her case.
Pier Hess Graf, Esquire
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This article was updated Saturday afternoon with a statement from Lebanon County District Attorney Pier Hess Graf.