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Burger's sentencing hearing delayed until December

Posted: November 28, 2012 - 3:35pm  |  Updated: November 29, 2012 - 1:08am

A judge on Wednesday granted a motion to delay Joshua David Burger’s sentencing hearing until December.

The hearing was slated for Friday, but Burger asked it be continued to counter a pre-sentence report that recommended more probation time than agreed upon.

Burger, 37, pleaded guilty in September to felony indecent exposure and entered into a plea agreement that calls for eight years of prison with six years suspended. That’s two years to serve.

The agreed-upon probation time was for 10 years, but a probation officer who authored the pre-sentence report (PSR) recommended 15 years, according to prosecutors.

In a motion filed Monday, Burger’s attorney Julie Willoughby complained the PSR was filled with “false assumptions, rumors, misstatements and pseduo science.”

Willoughby described the recommended probation conditions and length as “draconian.” She requested more time to counter the report by calling an expert witness to the stand, whom she said would be available by Dec. 9.

Willoughby noted that Alaska court rules require PSR’s to be filed 30 days before sentencing, but the normal practice in Juneau is for PSR’s to be filed within 10 days of sentencing.

“This is not a typical case,” Willoughby wrote.

District Attorney David Brower opposed the continuance, saying rescheduling the hearing would be a hardship to the victim in this case.

“After all this time they would like to finally like to put this part of their lives this behind them (sic),” Brower wrote in his response filed Wednesday. “Although not entirely in agreement with the resolution of the case, they would like the sentencing to take place Friday as scheduled.”

Brower added that the probation officer filed the PSR with the court on Nov. 9, but the defense did not object until the Monday before the Friday hearing.

Burger’s sentencing hearing was initially scheduled for Nov. 16, and it was moved to Friday, Nov. 30, because of a court scheduling conflict. That means Burger had three weeks to respond to the PSR, Brower wrote.

“Instead of 30 days, the parties have had approximately 21 days to respond to the PSR, more than is the practice,” Brower wrote. “But nothing was filed until four days before the sentencing.”

Brower also noted that the only thing the PSR suggests that is counter to the plea agreement made in September was the added probation time. The other aspects of the agreement are that Burger will register as a sex offender and engage in sex offender treatment, but the rest of the conditions are open to the court, Brower wrote.

PSR’s are confidential documents not available to the public or press, and they include recommendations for a defendant’s probation, treatment and sentencing. The reports are written by probation officers with the Department of Corrections and are prepared for a judge to consider before sentencing.

The judge in this case, Juneau Superior Court Judge Philip Pallenberg, will decide whether to accept the plea deal during the sentencing hearing.

Pallenberg ruled to reschedule the hearing for Dec. 17.

Pallenberg wrote in his order that the state provided several good reasons why an earlier sentencing date would be preferable, “but if a party insists on having the time allowed by the rule, I think the court is obliged to follow the rule.”

Burger was originally indicted last year on 100 counts of first-degree sexual abuse of a minor. Those charges were ultimately dismissed, and he was re-indicted on four counts of sexual abuse of a minor. Those charges were dropped in lieu of the reduced charge of indecent exposure.

Burger is currently in custody at Lemon Creek Correctional Center.

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

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