Cumberland County Judge Edward Guido is getting hammered in the court of public opinion for sentencing Georgina Zogby to probation instead of jail Tuesday.



Guido's ruling means Zogby, the wife of state Budget Secretary Charles Zogby, won't go to jail despite being convicted of two DUIs and two retail thefts.





But attorneys on both sides — prosecutors and defenders — including those involved in the Zogby cases, said while people can disagree with Guido’s decision, there are no grounds to overturn it. The judge has the law on his side.

Even though Zogby committed all her crimes within two years — the two DUIs within three months — all the convictions under law are first offenses, instead of counting as repeat offenses that could force a judge to send Zogby to prison, these lawyers say.

Guido isn’t responsible for the actions of two other county judges who also gave Zogby probation instead of jail.

But Guido is taking the heat, from PennLive commenters at least, because his ruling wraps up the four criminal convictions against the 48-year-old Zogby, of Fairview Township.

As one poster, hgunwilltravel0, put it, “Cumberland County Judge Edward Guido should be recalled, voted out, or impeached for this gross miscarriage of justice.”

Other posters call for investigating Guido over him giving Zogby three years of supervised probation — but no jail — for the felony fleeing and eluding charge Guido had convicted Zogby of during a non-jury trial in September.

The fleeing and eluding — police-speak for a chase — led to

, when police stopped her Volvo after a 10-minute pursuit by putting strips on the road to flatten her tires.

Three months later,

.

Zogby pleaded guilty to the York County DUI and was sentenced on that one before Guido sentenced her on the July 2011 DUI in Cumberland County on Tuesday.

But Zogby’s lawyer William Fulton said the York County DUI didn’t count as a second offense, because Zogby had not been convicted of DUI or any other crimes when the York County DUI occurred in September 2011.

“You don’t have a prior conviction until you are found guilty and sentenced. It wouldn’t have been fair to treat her as a second offender in York. What if she had been acquitted of the Cumberland County case? You are presumed innocent,” Fulton said.

And while Zogby had already been sentenced on the second DUI — the York County one from September 2011 — before Guido sentenced her on the first DUI Tuesday, Fulton said what matters under law is that at the time of Zogby’s July 2011 DUI, she had no criminal convictions of any kind.

So that made the July 2011 DUI a first offense.

Gary Lysaght, a midstate lawyer specializing in DUI, said county judges typically won’t send someone to jail on a first DUI with no criminal history, if the person can show he or she has or is taking steps to overcome their drinking problem.

Fulton in making his case Tuesday told Guido that Zogby had completed three inpatient treatment programs since being arrested on her second DUI.

Besides letters from family and friends, Fulton made sure that Guido saw on the top of the file a letter from Zogby’s York County probation officer saying she was attending daily meetings of Alcoholics Anonymous and seeing her psychologist weekly.

But what about

, one from T.J. Maxx in Hampden Twp. in 2010 and the other from Wegman’s in 2011?

Fulton said these don’t count either, since the retail theft convictions did not occur before either of Zogby’s DUIs.

Cumberland County District Attorney David Freed said even if the retail theft convictions had come before Zogby’s DUIs, under law they would not have been counted as criminal history.

“Until you get a bunch of (retail theft convictions) it doesn’t impact your prior record. It would need to be more than two,” Freed said.

Also relevant are state sentencing guidelines that give judges leeway in deciding punishment. The guidelines set a standard range for sentencing on each offense, a middle ground if you will.

Judges can step outside the standard range — imposing harsher, or more lenient punishment — but they have to give a reason for doing so.

The fleeing and eluding — not the DUI itself — was the most serious charge Zogby faced Tuesday. Fleeing and eluding by itself is a misdemeanor, but becomes a felony when coupled with a DUI, and that’s what happened with Zogby’s July 2011 case.

Guido under the standard range could have given Zogby up to 9 months in jail. He gave her probation instead, citing in comments from the bench “the gargantuan effort” Zogby had made to overcome her addiction.

Guido declined to make any further public comment Wednesday.

Guido’s bashers insist Zogby got off light because she is married to the state budget secretary. But Lysaght thinks Zogby’s connection worked against her.

He said Freed could have let Zogby plead the fleeing and eluding to a misdemeanor.

Instead, Lysaght contends that because of all the public attention to the case, Freed held fast to the felony fleeing and eluding to make sure opponents couldn’t paint him as playing favorites while running for attorney general.

As a result, Lysaght said jail or no jail, Zogby has a felony conviction that will dog her for the rest of her life.

Freed, a Republican who lost to Democrat Kathleen Kane, laughed at Lysaght’s suggestion and said election-year politics had nothing to do with it and that he handled the Zogby case as he would anyone else.

“The reason I took a hard line was because she was clearly in a place in her life where she had committed repeated criminal acts,” Freed said.

Freed declined comment on Guido’s ruling. If anything, Freed said his office had less control or influence on Guido’s decision, because no deals or agreements were made regarding Zogby.

“This is one of those cases where it was completely up to the judge,” Freed said. “Judges have all the power unless there is a sentencing agreement, and to get one I have to give something up. I didn’t give anything up, so there would not have been an agreement. I controlled what I could control here, which was the charges and the grading.”

Despite no jail time, Fulton said Zogby faces at least 7 years of supervised probation, counting Judge Tom Placey’s sentencing Zogby to five years of probation on the retail theft convictions in May.

“It’s not like she has walked away from it scot-free. This will be hanging over her head until she’s in her 50s,” Fulton said. “If she wants to go to the beach for a weekend she can’t just do it. She has to contact her probation officer to get permission to travel outside her jurisdiction. If her probation officer makes a home visit and finds her drinking a beer, she’s going to jail.”

Fulton said Zogby surrendered her driver’s license in September 2011. It will be at least two years before she can get it back.