Felon who had former North Myrtle Beach public safety director’s gun wants reduced sentence

dwren@thesunnews.comSeptember 18, 2013 

— Kachef Spain – who is in federal prison after being caught with a stolen handgun belonging to a former public safety director – wants a judge to shorten his time behind bars, saying previous felonies that earned him a stiffer sentence should be counted as just one offense because they happened during the same string of crimes.

Spain was sentenced in November to 15 1/2 years in prison after pleading guilty to being a felon in possession of a handgun. Spain received an enhanced prison sentence – five additional years – under the federal Armed Career Criminal Act because he previously had been convicted of three violent felonies.

However, Spain – in a court filing this week – said prosecutors only made reference to two of his previous felonies during sentencing and those charges – for strong-arm robbery and grand larceny – should be considered as one act because they were part of the same crime. Spain wants a judge to vacate the armed career criminal enhancement, which would shave five years off his sentence.

Spain filed the court document pro se, or on his own behalf, from Williamsburg Federal Correctional Institution in Salters. The filing – filled with misspelled words and grammatical errors – was rejected by Judge Bryan Harwell, who ordered Spain to resubmit the request on a proper court form. Spain has 30 days to re-file the document, otherwise his request will be dismissed.

Russell Mace, a Myrtle Beach lawyer and criminal defense expert, said Spain’s request could have merit because sentencing guidelines call for the three violent felonies to have occurred on separate occasions and not during the same string of events.

“He’s going to say it was one continuous episode,” said Mace, who has no connection to the case. “The government is going to say they were different crimes.”

Even if a judge agrees with Spain, Mace said he still could be given an enhanced sentence if there are other felony charges in Spain’s past that can replace the ones used during his sentencing hearing.

“It doesn’t turn on these two cases if he has other previous convictions,” Mace said. “That’s something the government would explore.”

Spain has a long criminal history including several burglary and drug charges. He had just been released from serving six concurrent 15-year prison sentences for burglary when he was arrested in early 2011 by Horry County police on drug charges. The incident that led to his arrest for the gun charge occurred in late 2011. Convictions for serious drug crimes also can count toward the three charges needed for the enhanced prison sentence.

Scott Joye, a Murrells Inlet lawyer who represented Spain, said Wednesday he has not seen Spain’s filing and did not want to comment on the matter without first reviewing the document.

Spain claims Joye provided ineffective counsel because the lawyer should have objected to the enhanced sentence. Spain pleaded guilty to the gun charge, but that guilty plea does not prohibit him from seeking a reduced sentence on the claims of ineffective counsel.

Spain was arrested on Nov. 14, 2011, following a pursuit along the Carolina Bays Parkway. During the police chase, Spain tossed a handgun out of the window of his car, according to a police report. Police found a .40 caliber Glock pistol, which turned out to be the police service weapon that had been stolen nearly two years earlier from a vehicle belonging to William Bailey, the former public safety director in North Myrtle Beach.

Spain was placed on home detention but escaped three weeks later by removing a GPS monitoring system affixed to an ankle strap he was forced to wear. Spain was at large for more than a month before surrendering to officials in January 2012.

Spain was indicted on the federal handgun charge a month later, and local officials dismissed numerous charges against Spain once the federal case began. Those charges included drug possession, failure to stop for a blue light, possession of a stolen weapon and those associated with his escape from home detention.

Contact DAVID WREN at 626-0281.

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