Too Much Time?

by Jordan Green

Derek Twyman, a 26-year-old Canadian citizen, had already been convicted of arson in Forsyth County when he was indicted for 26 second-degree burglaries in Guilford County in late 1989.

Twyman, who was employed at his father’s furniture store in Winston-Salem at the time of the crimes, carried out a string of burglaries in some of Guilford County’s most exclusive communities from October 1988 through May 1989. Indictments indicate he and his codefendants systematically robbed homes surrounding Cardinal Golf and Country Club, Starmount Country Club, Sedgefield Country Club and Forest Oaks Country Club, swiping firearms, Sterling silverware, a video-cassette recorder and even an honorary clock received for 25 years of employment at automaker General Motors.

The frequency of the crimes and the close proximity of the victims’ addresses suggest dedication; the stack of indictments gives the suggestion of timesheets for a job requiring evening service calls as often as four nights a week. The Greensboro Police Department, the Guilford County Sheriff’s Office and the State Bureau of Investigation pooled their resources to put together a case against the young burglar.

At the recommendation of his lawyer, Twyman says he threw himself at the mercy of the court in anticipation of receiving a more lenient sentence. He pled guilty to four consolidated second-degree burglaries. District Court Judge Thomas Ross then slapped Twyman with four consecutive 40-year sentences.

Now 43 years old and living in Brown Correctional Institute in Anson County, Twyman is appealing to anyone who will listen to examine the severity of his sentence and support his efforts to be transferred into the custody of the Canadian prison system. North Carolina prison authorities have refused to budge, citing a federal law that requires Twyman to pay hundreds of thousands of dollars in restitution to his victims before he leaves the United States.

“I’ve been through maybe four attorneys,” Twyman said in a recent interview. “They’ll tell you they want three or four thousand dollars just to talk. They tell me, ‘I’m sure there’s something I can do for you.’ Then they’ll say they want ten thousand dollars to go to the governor and do something menial like request clemency.

“The most I can make in prison is a dollar a day,” he added. “Where do they expect me to get four hundred thousand dollars to make restitution?”

Following his conviction in Guilford County Courts, Twyman was subsequently convicted of five counts of breaking and entering, one count of attempted breaking and entering, and four counts of larceny in Davidson County in 1990 – adding another five years. The total term has been roughly cut in half, and Twyman’s projected release date is Dec. 5, 2067.

“I will be a hundred and five before I’m released,” Twyman said, laughing at the irony of what is effectively a life sentence.

State prison officials have not been particularly sympathetic to Twyman’s plight. In response to an inquiry by Twyman, the auxiliary services chief at the Division of Prisons indicated there was nothing she could do for the prisoner.

“When you were sentenced, the presiding judge ordered payment of a substantial restitution to a number of victims,” Mary Lu Rogers wrote to Twyman in September 2005. “This money will have to be paid in its entirety before you will be given favorable consideration for International Prison Transfer.” She indicated that the US Justice Department, which approves international prisoner transfers, would not sign off on the move with the outstanding debt hanging over Twyman’s head.

The reasons for the Justice Department’s rules are straightforward: Once a prisoner leaves the country the government loses all its leverage to compel the offender to repay his debt. “Because all supervisory authority over the prisoner is terminated when the prisoner transfers,” the guidelines state, “financial obligations of the prisoner need to be settled prior to transfer.”

Rogers said Twyman will be eligible for parole in 2017.

Patsy Joyner, administrator of the NC Parole Commission, said she does not believe Twyman’s Canadian citizenship would lessen the likelihood that the prisoner could be released on parole. Twyman would be subject to parole supervision in Canada and expected to make restitution payments.

Twyman said he believes his lawyer provided shoddy legal representation and the judge dispensed uneven justice. He takes responsibility for some of the burglaries, but not all of them.

“I guess it was basically coming down from Canada and trying to fit in,” he said. “Trying to find friends you could relate to, running with the wrong crowd. A guy says, ‘Let’s go look at that house,’ or, ‘Let’s go drink.'”

Twyman said his co-conspirator confessed to several of the burglaries, but told the authorities he was drunk at the time and fingered Twyman as the mastermind. Twyman insists that he only committed half to three quarters of the crimes with which he was charged.

“I definitely pleaded guilty to crimes I didn’t commit,” he added. “I had girlfriends who could tell you I was with them,” he said. “I had credit card receipts in Winston-Salem. They were going to try me in groups of burglaries. Maybe one of the crimes that I committed was in that group. Even if I could prove that I wasn’t in Greensboro, what the attorney told me is they would try me on the crimes they knew they could get me on, so when the others came up they could say, ‘Well, we can get him on these too.’

“I’ve got a letter [from lawyer David Freedman] saying I should plead guilty,” Twyman continued. “He has talked to the judge or the district attorney and ‘they’ll probably give you two fourteen-year sentences.’ He said I could do two fourteen-year sentences in ten years and be back out on the street. He said if I don’t plead guilty, I’ll get the next judge, who is the most harsh on the bench. I was kind of backed up against the wall.”

Freedman, who currently practices law in Winston-Salem, did not return calls for this story.

A transcript of Twyman’s plea shows that he pleaded guilty to three consolidated counts of burglary in Guilford County and one consolidated count of burglary in Forsyth County, with the understanding that he could face a possible maximum sentence of 160 years. Twyman declined to state whether he was actually guilty, taking what is known as an Alford plea, in which the defendant maintains his innocence but admits that enough evidence exists for him to be convicted.

“I think the guy’s retarded,” Twyman said of his lawyer. “Why would you pay a lawyer to get you one hundred and sixty years? As for David Freedman, maybe he didn’t know what he was doing in the courtroom, but even when I got that sentence he should have done something to correct it. You take a plea to salvage your life, not to stay in prison until you’re a hundred and five.”

He said he was taken aback when the judge handed down the sentence.

“I know from talking to people that Judge Ross has never given out a harsh sentence like that,” Twyman said.

Ross has had a distinguished legal career. In 1994, he was one of 10 people named “Public Official of the Year” by Governing Magazine. After retiring from the bench, he became director of the NC Administrative Office of the Courts, and in 2001 was hired as director of the Z. Smith Reynolds Foundation, a philanthropic organization in Winston-Salem.

Ross declined to comment for this story through his executive assistant.

As to the severity of Twyman’s sentence, the Division of Prisons’ Rogers pointed out that the defendant initially had 28 counts of larceny against him on top of a prior conviction for arson. Court records show that Twyman was also indicted for first-degree burglary – a more serious crime than second-degree burglary because it involves breaking into an occupied dwelling. Twyman ended up pleading guilty to second-degree burglary, in which the dwelling is not occupied, for the same incident.

Four years after Twyman’s conviction, the NC General Assembly enacted structured sentencing. The purpose of the new system was to provide more consistency by reducing the latitude given to judges in sentencing and replacing parole with a maximum and minimum sentence. Twyman was surprised to learn that Ross played a key role in developing the state’s structured sentencing guidelines in the early part of his tenure as chairman of the Sentencing and Policy Advisory Commission from 1990 to 1999.

“The state wanted to have a better grid for its correctional needs to open more prison beds,” said Susan Katzenelson, executive director of the commission. “Judges had a wide range of discretion in sentencing offenders. Parole officers had a wide range of discretion for releasing prisoners.”

Fairness and efficiency were both considerations in the reform efforts.

“It was also a decision to make sure that similar offenses and similar offenders get more or less similar sentences, as a matter of fairness,” Katzenelson said. “To put violent and repeat offenders in prison – to have enough room for them – community alternatives were developed that included other options for non-violent offenders.”

The penalty for second-degree burglary is drastically different today. Less than half of offenders sentenced in fiscal year 2004-2005 for second-degree burglaries received an active sentence, a research and policy associate at the Sentencing and Policy Advisory Commission disclosed to Twyman in a letter dated Feb. 14. The average minimum sentence for offenders receiving an active sentence was 15.6 months and the average maximum sentence was 19.1 months. According to that calculation, Twyman could be expected to receive a sentence of five to six years for his four second-degree burglaries if he were convicted today.

Twyman argues that even murderers and pedophiles don’t receive as harsh a sentence as he was given.

Under today’s guidelines, the longest sentence someone convicted of second-degree murder, a Class B-2 felony, could receive would be 32 years and eight months. Even a Class B-1 felony, which includes first-degree rape, incest, and crimes related to the use of nuclear, biological or chemical weapons, could result in a sentence of as little as 12 years.

Matt Goldman provided research assistance for this story.

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