April 17, 2004 - The St. Petersburg Times (FL) Drug Case Yields Sympathy, Sentence Richard Paey's Prison Term for Illegally Possessing Painkillers Makes Nobody Happy, Including a Juror. By Richard Raeke, Times Staff Writer

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NEW PORT RICHEY - Accused drug trafficker Richard Paey was sentenced Friday to spend the next 25 years in prison. Paey believes the sentence is unfair. So does the judge who sentenced him. And the prosecutors did what they could to avoid the harsh penalty.

Before trial, they offered him house arrest and probation for forging prescriptions to obtain painkillers. But Paey was stubborn. He didn't think he had done anything wrong. So he chose to stand on principle and go on trial. He knew the state needed a unanimous jury vote for conviction. Paey gambled that prosecutors could not convince all the jurors of his guilt.

And they didn't.

But the one juror who thought Paey was not guilty voted for conviction, a decision he now regrets.

"It's my fault," said juror Dwayne Hillis, a 42-year-old landscaper from Hudson. "Basically I should have stuck it out."

"They compromised," Paey said, "and in the field of justice, compromises lead to horrible injustice."

But compromise is at the heart of the daily business of criminal justice. More often than not, prosecutors allege one crime, then settle for a guilty plea to a lesser plea, just as they did with Paey, 45, of Hudson.

During trial weeks, judges set 40 cases on their calendar, knowing the sides will settle at the last minute. It's the grease that keeps the courts from being even more jammed than they already are.

Right or wrong, it was not Hillis' compromise that sealed Paey's fate. Prosecutors say it was Paey's unwillingness to compromise.

"It's unfortunate that anybody has to go to prison but he's got no one to blame but Richard Paey," Assistant State Attorney Mike Halkitis.

Paey doesn't believe he has done anything wrong. He suffers from chronic pain and he and his doctor took steps to relieve that pain.

He declined to make a statement before the court Friday. But his wife, Linda Paey, explained his unwillingness to take a plea bargain.

"My husband's stubbornness comes from the fact that he does not feel he is guilty," she said.

Paey needed to be charged, just like others who forge prescriptions for painkillers, Halkitis said. "Even if he possessed one pill illegally, it's a crime."

"All we wanted to do was get him help and get him treated to ensure that he's not doing anything criminal," he added.

Paey was severely injured in a 1985 car accident. Flawed back surgery following that crash has left him in a wheelchair. His injuries also left him needing large numbers of painkillers, he said.

Between January and March of 1997, Paey bought 1,200 pills from a number of pharmacies. Investigators from the Pasco County Sheriff's Office and the federal Drug Enforcement Agency were watching him the whole time.

That investigation was the first problem with the case, Hillis said.

"Why didn't they just stop him after the first time?" he asked. "It seemed like a witch hunt."

"I kept waiting to hear that he was selling them somehow. If he was selling them, that's one thing. But he was eating them."

Hillis was the lone hold-out on the jury. He saw problems with the prosecution's case, beginning with its star witness, Dr. Steven Nurkiewicz. Nurkiewicz, who treated Paey in New Jersey, testified that he violated federal law by sending undated prescriptions to Paey after he moved to Florida. Yet no charges were brought against him.

The doctor also said he never wrote prescriptions for 400 pills a month. But Nurkiewicz's own logbooks contradicted that testimony.

And, Hillis said, there was no handwriting analysis to prove Paey had forged the signatures. A worker in Nurkiewicz's office could have signed them.

Paey bought Percocet, which contains 1.5 percent oxycodone as the active ingredient. Under the law, trafficking in more than 28 grams of oxycodone - less than a 100-pill prescription of Percocet - qualifies for the minimum mandatory sentence of 25 years in prison and a $500,000 fine.

"Someone needs to take a look at this case in Tallahassee and change (the law)," Attridge said.

"Well," said Circuit Judge Daniel Diskey. "You read my mind."

Attridge said a pill bottle of Percocet brings a 25-year sentence but 10,000 pounds of marijuana results in a sentence of 15 years in prison and a $200,000 fine.

Against the judge's instructions, the jurors discussed the possibility of a 25-year sentence for Paey, Hillis said. Many were uneasy with the punishment. But the jury foreman said Paey would get probation, Hillis added.

The jurors didn't know that the judge had no choice.

"In 22 years of practicing law . . . I have watched the trial court's discretion in sentencing eroding away." Diskey said Friday, adding that legislative guidelines have "virtually eliminated judicial discretion."

The judge said Paey had plenty of chances to settle the case, knowing the possibility of receiving a 25-year sentence.

"It should come as no surprise that I am going to follow the law," he added.

Assistant State Attorney Scott Andringa said there is more to the case than came out in court.

"This case is more aggravated than (Attridge) makes it out to be and than some people would be led to believe," he said. "It may not be so unreasonable as some would suggest."

In March, he approached Paey before attorneys picked a jury in his third trial.

"In court we said we would consider any reasonable offer made by Mr. Paey through his attorney," Andringa said.

After the jury convicted Paey of 15 counts of drug trafficking, obtaining a controlled substance by fraud and possession of a controlled substance, prosecutors offered him another deal - if he gave up his right to appeal the case. Paey said he wouldn't consider any deal that included time in prison.

But in the jury room on March 4, the verdict came down to a compromise. Deliberations had lasted close to 10 p.m. and everyone wanted to go home, Hillis said.

With assurances from the foreman that Paey would do no time in prison, Hillis compromised.

"I said, "Guilty. Put it on the (verdict). I hope you all can live with yourselves,' " Hillis recalled. "I just hate myself for what I did."