Frank McHenry mug

Frank McHenry

CHEYENNE – The sentencing of a man convicted of voluntary manslaughter and other felonies has been reset for Jan. 27.

The rescheduling comes after several continuations and recent controversy surrounding the case of Frank John McHenry, who pleaded no contest to shooting and killing Joseph Steven Tortolito, 61, of Cheyenne, and shooting and injuring a woman in May 2018.

McHenry’s sentencing had most recently been set for Friday afternoon. But on Monday, McHenry’s attorney, Cody Jerabek, and Laramie County District Attorney Leigh Anne Manlove filed a joint motion asking that the sentencing hearing be continued.

Because the motion did not include a recommended timeframe for the continuation or any reasoning for it, other than the vague statement “Pending matters continue to exist that prevent the defendant from making a full and cohesive decision regarding his rights and potential courses of action,” Rogers said she “had no choice” but to hold a hearing on the motion.

That hearing took place Friday afternoon in Rogers’ courtroom, in place of McHenry’s sentencing.

Jerabek said during the hearing the motion was intentionally vague in an effort to “protect my client’s rights and potential rights.” He said it was possible McHenry would ask the court to reconsider prior motions or pleas, but that they were in discussions with the District Attorney’s office about how to maintain the current plea agreement and proceed to sentencing.

The state and McHenry agreed to argue for a maximum sentence of 14 to 20 years in prison, per a plea agreement filed Aug. 17.

Manlove said Tortolito’s sister intended to speak in person at McHenry’s upcoming sentencing, along with a few others.

Both Manlove and Jerabek requested more than an hour for the proceeding. The Jan. 27 sentencing has not yet been set for a specific time.

On Nov. 16, Manlove filed a motion challenging Laramie County District Judge Catherine Rogers’s setting of a closed hearing Nov. 12. The closed hearing included McHenry, Jerabek, Rogers, Rogers’ court reporter and jail staff.

Rogers denied Manlove’s motion Nov. 18, providing no explanation for the decision in her order.

On Nov. 30, Manlove filed a petition with the Wyoming Supreme Court, asking the court to require Rogers to turn over a transcript of the closed Nov. 12 hearing, “to cease and desist closure of the public’s courtroom” and prohibit her from closing any future proceedings in the McHenry case.

In her response to the filing, Rogers said no one from Manlove’s office responded to an email exchange scheduling the closed hearing in the four days before it took place. Copies of the email exchange included in court records show the emails were sent to Manlove’s address.

“Neither Manlove nor any other attorney in her office appeared or attempted to participate in the hearing,” the judge wrote. It was unclear whether Manlove’s office would have been allowed to participate had they attempted to do so.

Manlove’s petition was dismissed Tuesday after she failed to show cause why it should not be dismissed, as was ordered by Supreme Court Chief Justice Kate M. Fox. In her order, Fox questioned whether Manlove, as a district attorney, had the authority to file such a petition for an issue that arose from a criminal case.

In an email to the Wyoming Tribune Eagle following the Supreme Court’s dismissal of her petition, Manlove expressed concern about Rogers’ closed hearing and sealing of the transcript. She described holes in the state’s laws when it came to a district attorney’s authority to file a civil action with the high court and said it would be an easy statutory fix, as county attorneys are already allowed to do so.

“I certainly tried to protect the public’s right to know, and the media’s right to access information, and my obligation to the residents of Laramie County to ensure that justice is served in our criminal courts, but as the Supreme Court held, as the district attorney I can only act as prescribed in W.S. 9-1-804,” she wrote. “This is a profoundly bad outcome for anyone who cares about open and accountable government, especially when, as here, an individual’s freedom is on the line.

“Voters in this county, and around the state, should be worried about the precedent Judge Rogers set and what’s coming next,” the District Attorney continued. “The problem, of course, is that with closed criminal proceedings where the prosecutor is not permitted in the courtroom, voters will not know what their judges are doing because there is no way to hold them accountable if they can operate behind closed courtroom doors as Judge Rogers did in this hearing.”

The Nov. 12 closed hearing

Though it was unclear exactly what took place during the closed hearing, as the transcript was ordered sealed by Judge Rogers, jail calls between McHenry and family members indicated the judge suggested that McHenry withdraw his plea, and that McHenry believed the hearing had stemmed from a conflict between Rogers and Jerabek.

McHenry allegedly told his mother that, if he withdrew his plea, the judge said she would appoint him new counsel from the Office of the State Public Defender, and offered to transfer his case to another judge.

In her response to Manlove’s petition to the Supreme Court, Rogers explained, at least in part, her reasoning for recommending McHenry appoint alternate counsel.

“Long before the events Manlove objects to, Judge Rogers had observed several concerning incidents involving Mr. Cody Jerabek, McHenry’s defense counsel,” she wrote. “Most notably, Mr. Jerabek had failed to address McHenry’s earlier plea of not guilty by reason of mental illness, as the court had ordered. Following a show cause hearing, Judge Rogers found Mr. Jerabek in contempt and formally reprimanded him for this failure to adhere to the court’s orders.”

In a Nov. 18 letter to Rogers’ chambers, Jerabek notified the judge that McHenry had requested a public defender be appointed “as outside counsel to advise him on a temporary basis regarding his case and plea,” according to court documents. Jerabek wrote that public defender Brandon Booth was willing to accept the appointment.

A hearing was set Nov. 22 to address McHenry’s request, but Jerabek was still representing McHenry at Friday’s hearing.

McHenry had apparently indicated his intentions to request new counsel previously, but the court requested that he “take additional time to make his decision” and then write a letter to the court.

In a motion to continue sentencing, also filed Nov. 18, Jerabek wrote that during the closed hearing, McHenry “was advised directly by the court about certain rights and potential avenues that he could pursue given the court’s position on his representation.” Jerabek said it was his understanding that McHenry had written a letter to the court, but Jerabek had not seen or read the letter at that time.

McHenry pleaded no contest in August to voluntary manslaughter, attempted voluntary manslaughter, two counts of aggravated burglary with a deadly weapon and four counts of interference with a peace officer with injury as part of a plea agreement.

Hannah Black is the Wyoming Tribune Eagle’s criminal justice reporter. She can be reached at hblack@wyomingnews.com or 307-633-3128. Follow her on Twitter at @hannahcblack.

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