Insurance Fraudster to Spend Years in Prison
Insurance fraud is a bad enough crime but when you add to it resisting arrest and running down two police officers who stopped the fraudster for a vehicle code violation, it takes a great deal of gall to claim the sentence is too harsh. That did not stop Ishmael Ali Burk. He tried all the way to a Pennsylvania appellate court.
In Commonwealth of Pennsylvania v. Ishmael Ali Burk, J-S45038-19, No. 1516 EDA 2018, Superior Court of Pennsylvania (August 16, 2019) Ishmael Ali Burk (Burk) appealed from the judgment of sentence imposed by the Court of Common Pleas of Bucks County (trial court) after he pleaded guilty in case numbers 4724-2017 and 8580-2017.1 Specifically, he challenges the discretionary aspects of his sentence.
On February 16, 2018, Burk pleaded guilty to Criminal Attempt-Theft by Deception, Theft by Deception, Bad Checks, Insurance Fraud, and Criminal Use of a Communication Facility. The charges related to Burk’s operation of a complex criminal scheme to defraud auto insurance companies from June 31, 2014, through September 3, 2015. In the course of the scheme’s operation, Burk filed 32 fraudulent claims with ten different insurance companies, with each claim pertaining to one of six cars. During the policy application and claim processes, Burk would falsely deny previous coverage for the car, provide deceptive reports of vehicle damage and about past claims (if discovered), and give and use false names, birthdates, Social Security numbers and addresses. Burk received $22,994.95 due to the fraudulent claims. He would have realized another $85,000.00 if all of the claims he attempted had been successful.
In an unrelated case, on October 30, 2017, Burk pled guilty at docket number 4724-2017, before us in a companion appeal at docket number 1522 to two counts of Aggravated Assault, Fleeing or Attempting to Elude a Police Officer, Recklessly Endangering Another Person, Resisting Arrest, False Identification to Law Enforcement, and several summary traffic offenses. The court deferred sentencing. The charges arose from a June 26, 2017 incident in which Officer Thomas Leonhauser initiated the traffic stop of a vehicle driven by Burk because it was going 62 miles per hour in a 40 mile per hour zone. When Officer Leonhauser stopped the vehicle and asked Burk, who later was determined to be driving with a suspended license, to provide his identifying information, he responded that he had no identification on him and he provided an incorrect spelling of his name (Shamael Burk) and wrong date of birth. The female passenger in Burk’s car did not provide any identification either.
Officer Andrews arrived on scene as backup. A search on the car’s license plate revealed the vehicle’s registration expired in 2008 and that there was an active Bucks County arrest warrant for Burk, the vehicle owner. When the officers asked to Burk to exit the vehicle, he refused and started it instead. The officers engaged in a physical struggle with Burk, who put the car in reverse and hit both officers with his open drivers’ door, causing them to fall. They returned to their police vehicle and pursued Burk, who was fleeing the scene in excess of speeds of 75 miles per hour. With other vehicles on the road, Burk exited his moving car, leaving it for his passenger to try to control, and began to flee on foot. The officers engaged in a foot pursuit of Burk through a residential neighborhood and were required to tase him twice. When the officers finally subdued him, they did so in spite of his consistent and aggressive attempts to resist arrest. The officers were transported to the hospital for their injuries, which consisted of bruises and scrapes on their bodies.
Burk was sentenced on the two unrelated criminal convictions at the same time. In case number 8580-2017, the case involved in this appeal, the trail court sentenced Burk to an aggregate term of not less than 67 nor more than 134 months’ incarceration for one count each of Insurance Fraud, Dealing in Proceeds of Unlawful Activity, and Identity Theft, but did not impose any sentences on the remaining charges. The court ordered the sentences to run consecutively, for a total aggregate term of not less than 118 nor more than 236 months’ incarceration. In case number 4724-2017, the trial court sentenced Burk to an aggregate term of incarceration of not less than 51 nor more than 102 months’ incarceration for one count each of Aggravated Assault, False Information to Law Enforcement, and Fleeing or Attempting to Elude Police.
Burk filed a motion for reconsideration after which the court decreased each of the individual sentences, leading to an aggregate sentence of not less than 54 nor more than 108 months’ incarceration. The court ordered the sentences to run consecutively, for a total aggregate sentence of not less than 90 nor more than 180 months’ (seven and one-half nor more than fifteen years’) incarceration
On appeal, Burk contends that the trial court abused its discretion in imposing his sentence because while the sentence is “purported to be within the guidelines, but upon the aggregation of the counts and cases is unreasonable.
When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the inappropriateness of the sentence. Two requirements must be met before the appellate court will review this challenge on its merits. First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, that the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process.
Burk has met the procedural requirement. Further, his issue, that the sentence is excessive for the protection of the public, the gravity of the offense, and his rehabilitative needs, and is unreasonable. Defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence.
The trial court stated that its “sentence was necessary to protect the public from an extreme recidivist who completely rejected the terms and conditions of probation and parole supervision.” The trial court also considered Burk’s conduct, his criminal history, his rehabilitative needs, the sentencing guidelines, the impact of his crimes on the victims and community, and public safety. The trial court also found that Burk had an “absolute disregard for the rule of law” based on his criminal history, the fact that he committed each new crime while on probation, parole, or bail, and that there was an outstanding warrant for his arrest at the time of the Aggravated Assault incident because he was an absconder from parole supervision at the time.
As for Burk’s claim that the individual standard range sentences were excessive in the aggregate considering the sentence imposed with the fraud charge, the court only imposed sentences on six of the fifteen counts available, with no further penalties imposed on the other nine counts.
Based on all of the foregoing and the independent review of the certified record by the Superior Court it discerned no manifest abuse of discretion by the trial court in sentencing Burk to consecutive terms of incarceration in this matter. Defendants convicted of multiple offenses are not entitled to a “volume discount” on their aggregate sentence.
The court, faced with a criminal with little remorse for his crimes, a criminal who had the unmitigated “chutzpah” to claim the sentence was too harsh. In my opinion the sentences were not harsh enough since he not only committed insurance fraud while on parole for other crimes, he attempted to harm – and possibly kill – the police officers who stopped him on a vehicle code violation and attempted to escape only to be captured by the injured police officers.
© 2019 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
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