Killer's eligibility for sentence cut now in question

October 26, 1990|By S. M. Khalid | S. M. Khalid,Harford County Bureau of The Sun

BEL AIR -- Frank Paul Barnum, a Harford County man who last week had 30 years taken off his prison sentence for two murders, may not have been eligible to receive the reduction because he did not apply for it within 90 days of sentencing as required.

The apparent error, which went undetected for more than two years, came to light yesterday when a reporter for The Sun noticed the discrepancy in Circuit Court records and brought it to the attention of prosecutors.

"I was not aware of the error," said Circuit Judge Cypert O. Whitfill, who had been harshly criticized by families of the murder victims after reducing Barnum's 63-year sentence. "When it comes to motions, I depend on the parties. Nobody raised an issue at the time."

He declined to comment further.

State's Attorney Joseph I. Cassilly said his office will ask Judge Whitfill to reconsider his reduction of Barnum's sentence. "I might be happy I'm getting a second chance at Barnum, but I'm not happy that we didn't catch this before the furor," he said.

But Barnum's lawyer, Russell White, argued that he mailed the request before the deadline and that by not complaining for two years the state effectively waived its right to contest the sentence reduction.

The sentence reduction, which Judge Whitfill granted on grounds that Barnum had shown remorse and evidence of rehabilitation during the four years he has been jailed, would make him eligible for parole seven years early.

Under the original sentence, Barnum would have had to serve 15 years before becoming eligible for parole. With the reduction, he would be eligible in eight years -- or about four years from now.

Barnum, who is 22, was convicted in May 1988 of two counts of second-degree murder and one count of attempted second-degree murder in a March 1987 shooting incident that killed Dennis Comar, 21, of Abingdon and Dewey L. Martin, 55, of Baltimore.

Barnum had been involved in a traffic dispute with Mr. Comar on U.S. 40, then followed him to the Joppa home of his fiancee, where he fired one blast from a sawed-off shotgun that killed the two men and injured the father and a sister of Mr. Comar's fiancee.

Barnum was sentenced on June 30, 1988, and his attorney had 90 days to file for a sentence reduction.

Mr. White said yesterday that he mailed his written request for a hearing on Sept. 27, 1988 -- 89 days after sentencing. But it was not filed until Oct. 3, 1988 -- 95 days after Barnum was sentenced.

Mr. White argued that he mailed the motion within the 90-day period, and that the state had more than two years to discover any error. The state's failure to do so, he added, effectively waives its right to object to the reduction.

"It would seem to me that the state would have something to say first in two years," he said.

He noted that while serving his time at the Patuxent Institution in Jessup, Barnum has had two sentence-reduction hearings and no one brought up the filing date of the motion at either one.

But Diana A. Brooks, the county prosecutor who handled the case, argued that the filing error "had deprived the court of its authority" to revise Barnum's sentence, despite the prosecution's failure to spot the error. "By our inaction or failure to object, we cannot bestow authority on the court that it no longer has," she said.

Mr. Cassilly said that his office was unaware of the error because it received a copy of the mailed request for the sentence reduction and assumed that it was filed in the Circuit Court on the same day.

Still, some local attorneys faulted the state's attorney's office for not cross-checking their files with the court records.

"What's official is when it's stamped by the court," said one lawyer who requested anonymity. "The state is there to advocate for the people. That's what we pay them for, that's what we pay our taxes for."

News of the possible error was hailed by the family of Mr. Comar's fiancee, Janet Waitkus.

"Maybe justice will be done this time," said Joseph V. Waitkus, her father, who had been wounded by Barnum.

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