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Ex-JPD officer to be sentenced Tuesday

Brian Ervin pleaded no contest to attempted interference with official proceedings, faces 1-2 years in jail

Posted: January 26, 2012 - 1:10am
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Brian Ervin, former Juneau Police Department officer, walks into Juneau Superior Court in August 2011 where he pleaded no contest to a charge of attempted interference with official proceedings, a class 'C' felony. Original charges of sexually abusing a minor were dismissed as part of a plea agreement.  Michael Penn / Juneau Empire
Michael Penn / Juneau Empire
Brian Ervin, former Juneau Police Department officer, walks into Juneau Superior Court in August 2011 where he pleaded no contest to a charge of attempted interference with official proceedings, a class 'C' felony. Original charges of sexually abusing a minor were dismissed as part of a plea agreement.

The former Juneau Police Department officer who pleaded no contest in August to one count of attempted interference with official proceedings — a plea deal that dismissed multiple sexual abuse of a minor charges — is now scheduled to be sentenced Tuesday.

Brian Todd Ervin, now 39, is slated to appear in a Juneau courtroom before Ketchikan Superior Court Judge Trevor Stephens, who is travelling to Juneau to attend the hearing in person, court documents show.

The Empire reported Ervin was initially charged on Sept. 16, 2010, after an investigation by JPD of reported sexual abuse. Ervin, a JPD officer at the time, was charged by the District Attorney’s office with one count each of first-degree and second-degree sexual abuse of a minor. On Oct. 1, 2010, a grand jury indicted Ervin on two additional charges of first-degree sexual abuse of a minor.

In August, Ervin pleaded no contest through then-attorney and now Superior Court Judge Louis Menendez to the new charge of attempted interference with official proceedings, a class ‘C’ felony with a maximum penalty of up to five years in jail, a $50,000 fine, and supervised probation for 10 years. A presumptive sentencing range for a person with no prior felony convictions is zero to two years.

Menendez said during the change of plea hearing the parties agreed to a floor of one year and a ceiling of two years, and that there would be no conditions of probation prohibiting Ervin from contacting minors, including the child who was alleged to have been his victim.

Menendez formally withdrew his counsel on Aug. 10, and attorney Julie Willoughby entered as Ervin’s new counsel.

The sentencing hearing was originally scheduled for Nov. 21 after probation officers conducted an investigation and compiled a pre-sentence report. That hearing date was pushed back several times as motion filing continued.

The Department of Corrections filed the PSR on Nov. 15, just six days before the sentencing hearing, and Willoughby objected to the late filing and asked for the full 30 days required by law to review it.

On Nov. 10, Assistant Attorney General Jan A. Rutherdale asked the court to release the PSR to the Office of Children’s Services so it can be used in a civil case involving Ervin and the child alleged to be his victim. PSRs are a sealed document that are only accessible to the parties in a criminal case unless otherwise ordered by the court.

“These reports contain information needed by the department for purposes of preparing for and presenting evidence in the Dec. 1 deposition hearing in the children’s proceeding,” Rutherdale wrote.

Willoughby objected to Rutherdale’s motion to release the PSR for several reasons, including that the PSR is not relevant to the child’s civil case and that it includes no new information to the parties in the case; and that Willoughby intends to strike the report in its entirety, alleging the report is not relevant to the sentencing of Ervin for the crime to which he’s pleaded no contest. Willoughby also argued the court cannot consider a victim when sentencing Ervin for a crime against public administration, not a crime against a person as defined by state law.

“Because Mr. Ervin in not being sentenced for an AS 11.41 offense, no individual including (child’s initials) can be considered an individual victim who (sic) statements and allegations the court can and should consider for sentencing purposes,” she wrote.

Stephens disagreed, and ordered the PSR, and all its subsequent updates, to be released and available for the Office of Children’s Services to use in the civil child in need of aid case.

“Good cause has been shown with regards to Mr. Ervin’s opposition whether (child’s initials) is a ‘victim or not,” Stephens wrote in the ruling dated Nov. 28. “The offense he pled (sic) to concerns official proceedings in which she is the ‘victim.’ The sex offense allegations are the crux of the matter in the reference(d) CN cases, and disclosing the PSR will not unfairly interfere with his ability to contest the allegations in the CN cases.”

The disposition of that civil case, which is closed to the public, is now scheduled for February.

On Jan. 17, Willoughby filed an objection to the PSR’s use in sentencing, writing “The PSR erroneously assumes that there is a ‘victim’ in this case. Brian Ervin has denied, and continues to deny that he has ever ‘victimized’ (child’s initials).”

She goes on to write, “Pursuant to Rule of Criminal Procedure 32.1(d)(5), Mr. Ervin objects to the entire to (sic) PSR. While parts of it are accurate (pages 1-2) the overall tone and agenda of the report indicated that it is anything but impartial. It has an agenda. That agenda is that its author disagrees with the charging decisions made by the District Attorney. That is not the role of the probation department.”

Willoughby submitted letters in support of Ervin to be considered at the sentencing hearing, including one from a local Catholic clergyman, Ervin’s wife, his parents and multiple friends of the family. A letter from Ervin’s wife, Wendy M. Ervin, details how the charges against her husband affected her family, like how her husband the sole provider of income for the family, lost his job, and how they were evicted from their home because of the case’s notoriety.

“Finding a rental home at the time of newspaper coverage on Brian was so difficult that we were advised by lawyers to apply under my maiden name on applications. Our family lived at the Travelodge for several weeks while we located a home for sale and closed on it as quickly as possible,” Wendy’s letter read. “... Brian Ervin is an honest, honorable, Christian man. He has been falsely-accused (sic) and wrongly judged by many, evicted from his home, been dismissed from his job and now lost his entire adult career, lived at home for only 6 (sic) days since November 2010, and has missed so many memories with his young children, now 4 (5 in January), 8, and 10 he will never be able to get back.”

Ervin remanded himself to jail on Nov. 25, 2011, after the sentencing hearing was delayed.

Willoughby asked the judge to impose the minimum sentence provided in the plea agreement. She requested two years in prison with one suspended, probation for two years with the conditions of probation to the standard conditions for a non-sex offense ‘C’ felony with the only special condition being no direct or indirect contact with the child.

No response to Willoughby’s sentencing memorandum from the District Attorney’s office was filed as of Wednesday afternoon.

Editor's note: The subhead to this article has been changed to reflect the fact Brian Ervin pleaded no contest to the charge.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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