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Lawyer: Penalty sought is unfair

He compares the plight of his client, convicted on drug charges, to what legendary criminal Al Capone faced.

By CHRIS TISCH
Published October 10, 2005

LARGO - Defense attorney Denis de Vlaming says his client is getting the Al Capone treatment.

His client is 37-year-old Clearwater resident Daniel Welch. A jury convicted Welch on Thursday night of trafficking in oxycodone and conspiracy to traffic in the drug.

Welch faces a minimum of three years in prison. He has never been convicted of a felony before, yet prosecutors intend to ask a judge for a tough sentence, perhaps up to 60 years in prison.

Why?

De Vlaming said Welch is a suspect in the death of a Safety Harbor woman who was viciously attacked in her home last year. Welch has not been charged in that crime.

But de Vlaming suspects prosecutors want to punish Welch for the crime they cannot prove, just as law enforcement went after Chicago gangster Capone on tax evasion charges because they couldn't prove him a murderer.

"I call it the Al Capone factor," de Vlaming said the morning after the verdict. "If you can't convict them for what you cannot prove, then you overly punish them for what you can."

Pinellas sheriff's detectives have not labeled Welch a suspect in the Jan. 8, 2004, killing of Niccole Halpin, 32. But detectives have said they cannot confirm his whereabouts at the time of Halpin's murder.

Welch is Halpin's ex-boyfriend. Prior to her death, she had complained to family members that Welch was harassing her. She considered getting a restraining order.

On the night she was killed, Halpin was returning to her Safety Harbor home after dinner with her two sons, ages 7 and 9. An intruder, dressed in a ski mask and dark clothes, was inside the home.

The intruder attacked Halpin and chased her through the house. Halpin ran to a bedroom where one of the boys was playing a video game. The intruder beat her, spattering her blood on the front of the boy's shirt. Investigators said the man used a weapon, but won't say what it was.

The boys hid in a bathtub until the intruder left. Halpin died at a hospital two days later.

"I'm aware that they believe that Mr. Welch is responsible for a homicide that they cannot prove," de Vlaming said. "He has steadfastly maintained his innocence."

Ten months after the killing, Welch was arrested on a grand theft charge, accused of stealing items from a department store with the help of a friend who worked there.

The friend also was charged in the theft. She later told investigators that Welch and his stepfather were involved in dealing prescription drugs. Investigators bugged the friend and sent her undercover to buy drugs from Welch.

Welch's stepfather gave her 40 oxycodone pills. The pills came from Welch, who has a prescription for the drug. Welch was arrested for trafficking in oxycodone. His stepfather also was arrested and is awaiting trial.

The 40 pills weighed about 5.4 grams. A person can be charged with drug trafficking if they deal 4 grams of oxycodone or more.

Halpin's mother, Laurie Gomm, flew down from her home in Massachusetts to attend the trial. Other loved ones of Halpin's also attended.

Jurors took about 90 minutes to convict Welch of the drug charges after two days of trial. His sentencing date has not been set.

Halpin's loved ones were jubilant when the verdict was announced.

"As long as we can get him off the street. I know now he will be behind bars and hopefully will not come out again - ever," Gomm said. "I've seen the information the police have. And I don't believe it will be too much longer before we're able to start with Nikki's trial."

Sheriff's detectives say the investigation into Halpin's death is ongoing, but won't say much else.

De Vlaming and co-counsel Roger Futerman said prosecutors have indicated they will seek the maximum penalty in the oxycodone case for Welch: 60 years in prison.

They think the murder case has something to do with that.

"It would start a very dangerous precedent when you start asking courts to convict somebody because they're a suspect in something else, especially when the state doesn't charge them," Futerman said. "You cannot blur these cases together. They're separate and distinct."

Prosecutor Kendall Davidson said the state has not determined that it will ask for a 60-year sentence.

But, he acknowledged: "We're looking for a heavy sentence."

Davidson said that's because Welch has been convicted of two first-degree felonies. He said there also is evidence Welch was involved in more cases of dealing drugs. Welch also has the pending grand theft charge, Davidson said.

When asked if the homicide played a part in their efforts to seek a heavy sentence, Davidson said: "I'm not going to comment on that. But suffice it to say we believe he's a criminal who needs to be punished."

Judge Linda Allan, who presided over the trial and will sentence Welch, said she could not comment on a case before her.

"I'm confident that the judge in this case will only consider relevant items in sentencing and that he will be punished for only what he has been convicted," Davidson said. "I don't believe she will consider the homicide because he hasn't been charged with any homicide."

Charles Rose, a law professor at the Stetson University College of Law, said even if prosecutors are seeking a heavier sentence because of the homicide, that's their discretion.

"As long as the argument that they make to the judge comports with the minimum and the maximum allowed by the statute and the aggravating factors they bring forward are allowed by the sentencing statute ... that's their discretion and their job," Rose said. "And if they didn't do it, then we'd probably live in a less safe community."

[Last modified October 10, 2005, 01:18:12]