Carbon judge tosses claim in home invasion case

By Bob Laylo

The Morning Call

March 25, 2008

A Carbon County judge on Monday rejected claims from the mastermind of a home invasion robbery of a Palmerton doctor that his trial lawyer was ineffective.

Fernando Velez II, 28, will continue to serve his 61/2- to 16-year state prison sentence on robbery, conspiracy and unlawful restraint charges after the ruling by Judge David Addy.

Velez recruited Kristi Lynn Kauffman and Angel Torres to force their way into the home and rob Dr. John Nicholson and his wife, Joan, on Oct. 16, 2002. He gave Torres a mask and a pellet gun.

While Velez waited outside in a car, Kauffman and Torres burst into the house after Joan Nicholson, holding her 2-year-old grandson, opened the door.

Torres flashed a pellet gun and grabbed Joan Nicholson around the waist. Torres held the couple and the terrified child at gunpoint, forcing them to their knees while demanding money.

They took $500 to $1,000, a watch and cell phone.

Kauffman, 26, of Easton, and Torres, 30, of Effort, testified against Velez at his trial and later pleaded guilty to burglary, robbery and conspiracy charges. Kauffman was sentenced to 21 months to four years in prison. Torres got two to five years in state prison.

Velez, formerly of Blakeslee, had claimed trial lawyer Paul J. Levy should have more forcefully advised him to take a guilty plea instead taking the case to trial.

''We find that it flies in the face of rationality to argue that the defendant suffered injustice as a result of having his day in court,'' Addy wrote in rejecting the claim.

Velez also claimed Levy should have brought more evidence to call into question the credibility of the co-defendants who testified against Velez and should have produced evidence to show the pellet gun used in the robbery was free of his fingerprints.

Addy wrote that he reviewed trial transcripts and found that Levy did question the credibility of Kaufman and Torres. He had Kaufman admit to using pills and cocaine the night of the robbery.

Addy also noted that Levy pointed out that Torres gave inconsistent statements to police during the trial.

As for fingerprinting the gun, Levy had testified earlier that he did not fingerprint the gun because he did not want to run the risk of finding Velez's fingerprints on it. Instead, he pointed out at trial that police did not fingerprint the weapon.

''We find that trial counsel clearly developed and executed a well-reasoned strategy with regards to the gun,'' Addy wrote.

Finally, Velez claimed Levy hurt him at sentencing by bringing up his drug addiction and failing to mention mitigating factors such as his social background and education.

But Addy ruled he can't change the sentence, which was handed down by Senior Judge Richard W. Webb, because it doesn't exceed the limits set by law.

He also pointed out that Velez unsuccessfully appealed the sentence to state Superior Court.

robert.laylo@mcall.com 610-379-3223

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