The Tribune Democrat, Johnstown, PA

August 20, 2013

Sentencing delayed in box-cutter attack

Kathy Mellott
kmellott@tribdem.com

EBENSBURG — A Johnstown man convicted in June of attacking another man with a box cutter will have to wait a little longer to learn his sentence.

Erik Lybarger, 36, who was said to be homeless at the time of the attack on March 6, 2012, objected Tuesday to efforts by the court to postpone his sentencing date until mid-September.

He now is scheduled to be sentenced by Cambria County Judge Linda Fleming on Sept. 5, the last day possible under state criminal guidelines.

The guidelines require that sen-

tencing take place within 90 days following conviction.

“I am growing weary of the court proceedings,” Lybarger said in refusing to agree to the 10-day extension requested by the judge and prosecutor, Cambria County Assistant District Attorney Scott Lilly.

Lybarger was convicted of stabbing an acquaintance, William McGinnis, 29, of Johnstown, after the two got into an argument outside a business on Franklin Street.

City police charged Lybarger with aggravated assault and reckless endangerment.

A doctor with Memorial Medical Center’s trauma center testified at trial that the incident left McGinnis with a cut 10 inches long, gaping 5 inches wide and 2 inches deep.

Lybarger attempted to represent himself at trial but when he refused to follow the rules of the court, Fleming ordered him taken to the basement holding cell. She appointed Johnstown lawyer Michael Filia to defend him.

Filia on Tuesday objected to Lilly’s argument that Lybarger should receive a minimum sentence of 10 years in prison because the attack was a second offense.

“The two-strike provision of a violent offense is a 10 years mandatory,” Lilly said. “We’re giving notice to the defendant that we will be seeking a 10-year sentence.”

Filia said the first offense was an arson charge when Lybarger was a juvenile.

“We don’t believe an arson adjudication should apply as a prior conviction,” he said.

There also is a question of a recent state Supreme Court decision dealing with when the mandated sentence should apply, Fleming said.

The court encouraged Lybarger to agree to a delay of 10 days past the 90-day sentencing requirement, which would have set his sentencing on Sept. 15.

“I’m concerned. The outcome of those two issues have an impact on you,” Fleming told the defendant.

Lybarger rejected the request for a delay and attempted to engage the judge in discussion of the 10 motions he had filed as of Monday. Fleming said she would respond to his motions at the appropriate time.

Lybarger was returned to the Cambria County Prison, where he has been housed since his arrest.