Teen's heroin-death case returned to Carroll court

Judge didn't explain waiver to adult court

June 15, 1999|By Mike Farabaugh | Mike Farabaugh,SUN STAFF

A state appellate court has ruled that a Carroll circuit judge should have explained why he did not follow the recommendation of juvenile authorities last year when he waived a 16-year-old boy to adult court. The Westminster teen-ager was charged with selling a fatal overdose of heroin to a schoolmate.

In its unpublished 27-page decision, the Maryland Court of Special Appeals remanded the case of Kristopher Olenginski, now 17, saying that the court "must carefully consider the recommendation of the [Department of Juvenile Justice] and state on the record its basis for rejecting that recommendation, if it again elects to do so."

Olenginski was charged as an adult and waived to Circuit Court during a hearing before Judge Francis M. Arnold in March 1998, a month before being indicted by a Carroll County grand jury on charges of possession with intent to distribute heroin and possession of heroin.

Boy found dead

He pleaded not guilty in September but was found guilty by Elsbeth L. Bothe, a visiting former Baltimore circuit judge, of selling heroin to Liam O'Hara, a 15-year-old Westminster High sophomore who was found dead of an overdose Jan. 9, 1998, the morning after the transaction.

Prosecutors said Olenginski drove to West Baltimore Jan. 8, purchased heroin and returned to a Westminster shopping center and sold a $30 bag of heroin to O'Hara.

Bothe suspended all but 18 months of concurrent five-year sentences but allowed Olenginski, an honor student, to post an appeal bond and remain free until the appellate court determined whether he should have been dealt with in juvenile court.

The Court of Special Appeals agreed that Arnold was not required to follow the recommendation of juvenile counselors but said the judge's granting of the waiver "should reflect that the trial court has considered the recommendation and the court's reasons for rejecting that recommendation."

The appellate court also said that "although the court `reviewed' the report submitted by [the Department of Juvenile Justice], it failed to explain why it reached a contrary conclusion."

The appellate court's ruling leaves open various possibilities, said David P. Daggett, an assistant state's attorney.

Several options

Arnold has retired but could return and reconsider his decision to waive Olenginski to adult court, Daggett said.

If Arnold changed his mind and did not grant the waiver, the convictions would be vacated and Olenginski would return to juvenile court for adjudication.

If Arnold did not change his mind, he would have to put in writing or state on the record why he did not follow the recommendation of juvenile counselors.

If that happened, Anton J. S. Keating, the Baltimore attorney representing Olenginski, would be free to renew the appeal for his client, arguing for a new trial and new judge, or arguing against the explanation for granting the waiver.

When deciding to grant a waiver, Daggett said, a judge generally must consider the age of the defendant, the nature of the crime, the defendant's amenability to treatment, his mental and physical condition, and public safety.

The appellate court decision is "good because it shows the court process is working as it should, but it's bad because the case drags on for parents of Liam O'Hara and Kristopher Olenginski," Daggett said.

Pub Date: 6/15/99

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