Hefner sentencing is delayed

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The Thursday, Dec. 5, sentencing hearing for Justin Hefner spun for a period of time on a legal question and at the end the defendant asked for a continuance for more time to talk with public defender William McGrath. The sentencing was continued to Tuesday, Dec. 10.

Hefner, who believes himself a Department of Defense agent imbued with police powers that include investigation and arrest, has been in custody since Feb. 18, 2018, when he arrived armed and clad in body armor at the Edgar County Jail requesting assistance in making arrests of local citizens. A jury found Hefner guilty Oct. 30 of a Class 2 felony of false impersonation of a peace officer while attempting to commit a felony and a Class 4 felony of false impersonation of a peace officer.

At the start of the hearing Thursday morning, Judge Steven L. Garst noted the defendant had filed eight motions since the trial and McGrath had filed one. Garst asked if McGrath intended to adopt any of Hefner’s motions and the public defender said no.

Turning to Hefner’s motions, Garst asked if he was alleging McGrath provided ineffective counsel, and the defendant confirmed that is his belief.

“I was convicted of a Class 3 felony and he told me I was charged with a Class 2 felony and not eligible for the $30 per day credit,” said Hefner. “If he told me the truth, I could have gotten out and hired private counsel.”

Garst reminded the defendant he was convicted of a Class 2 felony and because that Class 2 was among the charges placed against him he was not eligible for the $30 per day credit toward bond.

Hefner additionally claimed McGrath did not subpoena evidence he wanted placed in evidence such as a testimony from an FBI agent and Hefner’s business records.

“He (McGrath) stated to the jury that I didn’t have to prove anything, but I had to prove everything,” said Hefner.

The judge took time to explain to the defendant how trials work. He said trial strategy, including what to subpoena and what to use as evidence, is the attorney’s responsibility. Garst noted a defendant has the absolute right to decide between a bench or jury trial and whether or not to testify but all other decisions are best left in the hands of a trained attorney.

Garst also informed Hefner there was no reason to subpoena the FBI agent.

“The FBI evaluated the case and determined it was not a federal crime,” said Garst. “The FBI can’t determine state crimes. There are two separate systems.”

Business records were also not evidence in this case, Garst informed the defendant.

Garst added Hefner has always had the option of hiring private counsel and posting bond, but Hefner disagreed.

“My wife has been threatened to not help with my defense. She didn’t come to the trial or visit me in jail. She is afraid to come to Edgar County,” Hefner said without offering any proof to back his claims.

Garst ruled McGrath did provide effective counsel especially with his latest action of filing a motion arguing Hefner cannot be convicted of a Class 2 felony.

“I was unaware of that,” Hefner said about the new motion, while admitting he has refused to talk with his attorney.

The rest of the hearing was devoted to argument between McGrath and Edgar County State’s Attorney Mark Isaf regarding any ambiguity in the law pertaining to Hefner’s conviction of attempted unlawful restraint. McGrath claims since no restraint occurred his client cannot be convicted of that as a Class 2 felony because unlawful restraint is more commonly charged as a Class A misdemeanor or at the most as a Class 3 felony.

“I have had trouble from the beginning to understand how Mr. Hefner going to the jail to request assistance is a crime,” said McGrath.

Isaf insisted there is no ambiguity in the law. He argued it makes no difference if Hefner did or did not restrain somebody through an illegal arrest. The state’s attorney said the statute under which Hefner is charged specifically deals with the situation when a person falsely claims to have police authority as part of a plan to commit a felony.

“If you pass yourself off as a peace officer to commit a felony – that is pretty clear,” said Isaf.

Garst denied the defense motion and paused to determine if both sides were ready to continue with the sentencing hearing.

“I gave Mr. Hefner a copy of the PSI (presentencing investigation) and asked to speak with him, but he refused,” said McGrath. “I haven’t gone over it with him.”

Garst noted a discrepancy in the report. Per the judge’s reading, Hefner informed the probation officer preparing the PSI that he planned to live with his wife and children if released but failed to provide an address for that residence.

“If you get probation, probation needs to know where you live in order to visit,” said Garst.

The defendant promised to let the authorities know the address as soon as he finds out.

“She (Hefner’s wife) moved and won’t tell me her address,” said Hefner, adding he gave her phone number to McGrath.

The public defender acknowledged having the number but said Hefner’s wife refuses to accept his calls or talk to him.

The court continued the sentencing hearing and admonished Hefner about what is expected of him.

“Mr. Hefner, please cooperate with Mr. McGrath, and you must have an address by next Tuesday,” said Garst.