McIntosh appeal has chance of success | Interactive Feature

McIntosh was sentenced last Wednesday to 3 1/2 to seven years in prison for his September 2002 sexual assault of the then-23-year-old first-year Penn veterinary student. Any appeal would most likely be an attempt to withdraw McIntosh's December 2004 no-contest plea and go to trial, rather than to seek a new sentence.

In court the morning of his sentencing, Philadelphia Common Pleas Judge Pamela Pryor Dembe denied McIntosh's motion to withdraw his no-contest plea, saying he has had multiple chances to withdraw his plea over the past several months and chose not to do so.

However, McIntosh may have solid legal grounds to appeal Dembe's decision, said Drexel University law professor Daniel Filler.

The Pennsylvania Superior and Supreme Courts' decision to vacate McIntosh's original house-arrest sentence - technically leaving him without a sentence until last Wednesday - may bolster his argument.

"Pennsylvania is very lenient typically in allowing [the defendant] to withdraw the plea before sentencing," said Filler, so an appellate court may be sympathetic to his request.

The appeal will be complicated by the intrigue surrounding the McIntosh case, said Philadelphia criminal defense attorney Patrick Artur.

"The grounds for appeal . are going to be based on what occurred in that back room," Artur said, referring to an alleged off-the-record plea deal that occurred between former counsel and Judge Rayford Means, who handed down McIntosh's original sentence, then recused himself from the case last September. The bargain purportedly guaranteed that McIntosh wouldn't go to prison in exchange for his no-contest plea.

"If you plead guilty, you're doing so on the basis of [these] agreements," said Artur. "This is done all the time and there's no record of it, but this is a case that has blown up because of its notoriety."

It is difficult to retract a guilty or no-contest plea. Before either plea is made, the judge asks the defendant a series of questions to determine that he or she is informed about its consequences and that the plea is the defendant's own decision.

Still, experts say McIntosh may have a chance of withdrawing his no-contest plea.

McIntosh's plea "is not a guilty plea, it's a plea of no contest, 'I can't fight it,'" Filler said. However, no contest is functionally the same as a guilty plea with regard to sentencing, Artur said.

Regardless of the legal strength of the case, experts agreed that its high profile may affect the appeal.

"This is a case that no court wants to be generous to him on. . [McIntosh] is the kind of character everyone finds repugnant," Filler said.

The McIntosh appeal "is certainly going to have a chilling effect on off-the-record conversations before a judge," Artur said, potentially changing the way lawyers in the Philadelphia area view backroom agreements and plea bargaining.

The defense has 30 days from the date of sentencing to file an appeal.

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