NEWARK — A Linden man, sentenced in 2006 to a 40-year prison term for drug and gun crimes, may soon walk free after a federal judge vacated his sentence, citing ineffective counsel.
Orrie McNeill, who was arrested in 2004 on charges that he was planning to distribute a kilogram of heroin and used a handgun to carry out his business, got a 30-year reduction on his sentence last week from U.S. District Judge William Martini.
Martini ruled that McNeill should be offered a plea deal he had twice turned down — a third chance made possible by a higher court ruling.
McNeill’s attorney, Jerome A. Ballarotto of Trenton, said courts rarely grant prisoners’ petitions for new trials or sentences. But it’s “incredibly rare” for a federal judge to vacate such a sentence, he said.
“Obviously, he’s extremely happy,” said Ballarotto “He’s overjoyed, as he should be.”
The facts of the case, according to court records, are straightforward:
On June 3, 2004, Linden Police responded to a call for a possible domestic dispute at the Swan Motel. There, they found Julia Sanchez covered in blood outside McNeill’s room, saying she had fallen on a piece of furniture.
McNeill, also outside the room, fled from police but was soon captured.
According to court records, police saw blood on the outside of the motel door jamb and looked for other victims. Inside the room, they found heroin and a handgun. As McNeill awaited trial, police found more heroin and another handgun in a car connected to McNeill.
Eventually, McNeill faced charges related to both findings, as well as charges that he was a convicted felon and not legally allowed to possess guns.
But McNeill wasn’t a convicted felon; he had a misdemeanor disorderly persons charge on his record, court documents show. Without a felony on his record, McNeill could legally possess a gun.
When prosecutors offered McNeill a deal to admit to some charges, they included a charge that he was a convicted felon in possession of a gun. McNeill, court records show, told his lawyer he would take a deal, but not with the felon-in-possession gun charge.
However, McNeil’s attorney at the time, Robert DeGroot of Newark, was seeking to have charges should dismissed, because he thought the search of McNeill’s motel room could have been illegal.
McNeill rejected a second plea deal, which again included the gun-possession charge.
DeGroot later said that since the gun possession charge wouldn’t affect the length of McNeill’s sentence in a plea deal, he gave it little weight. That, the court would say later, was a mistake.
Deciding against the deals, McNeill and DeGroot went to trial in 2006, where McNeill was found guilty on all counts. The two drug charges brought a mandatory 10-year sentence and the two counts that he used the guns in his drug deals carried five- and 25-year sentences that had to be served after the term for the drug charges.
The prior felony issue was determined to be moot and McNeill’s sentence was imposed at 481 months, court records show.
In an initial appeal, U.S. District Judge William Bassler found that McNeill was not credible when he testified that he would have taken the 10-year plea deal if he had known that admitting to the felon-in-possession gun charge wouldn’t have changed the sentence.
Martini replaced Bassler for the remainder of the case in 2014.
Then came a ruling in the Third Circuit Court of Appeals, which found in a Pennsylvania case that a convicted drug dealer had a “reasonable probability” that he would have accepted a plea deal had he not been given incorrect information from his attorney about the plea deal.
The reasonable probability standard, Martini would find, is a burden of proof that is “quite low.”
And so, when Martini considered McNeill’s motion to reconsider his appeal, he now had the Pennsylvania ruling as a guide.
He vacated the remaining 25 years in prison McNeill was facing, on the “reasonable probability” that McNeill would have accepted the deal had he gotten the correct information from DeGroot.
He ordered the government to offer McNeill — who has been in prison for more than 10 years — the 10-year plea deal again.
It was a stunning turn of events for McNeil, who in a joint filing with prosecutors two days before Martini’s ruling, sought the court’s blessing for just a one-month reduction from his 40-year sentence.
Prosecutors on Monday wasted no time filing an appeal of Martini’s opinion to the same Third Circuit.
According to Ballarotto, McNeill will have to wait for an appeal decision before he could be released.
DeGroot, who called McNeill’s original sentence “draconian” and “absurd,” was willing enough to admit his mistake.
“There’s erasers on pencils,” he said. “If I make a mistake and somebody gets hurt, I’m glad to see it rectified.”