Sex With Patient Not a Legitimate Psychotherapeutic Treatment
A practicing psychologist, Richard Scott Lenhart, engaged in sexual behavior with two of his patients under the guise that the sexual contact was legitimate psychotherapeutic treatment which he then routinely billed insurance for these sessions. He was charged with insurance fraud and indecent assault and plead no contest in a Pennsylvania state court.
In Commonwealth Of Pennsylvania v. Richard Scott Lenhart, J-S01036-18, No. 1070 MDA 2017, Superior Court Of Pennsylvania (APRIL 6, 2018) after the conviction Lenhart received a fairly harsh sentence and appealed his conviction and sentence.
On May 19, 2015, Appellant entered a nolo contendere (no contest) plea to two counts each of indecent assault and insurance fraud. On February 4, 2016, with the benefit of a pre-sentence investigation report (“PSI”), the court ordered Appellant to pay restitution to the insurance company in the amount of $71,557.00 and sentenced him to an aggregate term of three (3) to six (6) years’ incarceration. The court also adjudicated Appellant a Tier III sex offender and a sexually violent predator (“SVP”) under the Sex Offender Registration and Notification Act (“SORNA”) in effect at that time.
Appellant raised the following issue for review:
DID THE SENTENCING COURT ABUSE ITS DISCRETION IN IMPOSING MINIMUM SENTENCES WITHIN AND ABOVE THE AGGRAVATED RANGE OF THE SENTENCING GUIDELINES WHERE THE RECORD DID NOT SUPPORT AGGRAVATING CIRCUMSTANCES OR REASONS TO DEPART FROM THE GUIDELINES[?]
ANALYSIS AND ARGUMENTS
Appellant argued he had no prior record and cannot abuse his position of authority as a psychologist anymore, due to the revocation of his license and his conviction for a registerable offense. Yet, the court sentenced Appellant to an aggregate sentence of three to six years’ incarceration, including consecutive, aggravated range or above the aggravated range sentences, which were unsupported by legitimate factors, the court’s reasons, or the record.
Appellant complained the number of counts charged against him adequately addressed the number of victims, and their vulnerability was sufficiently addressed in the acknowledgment that the offensive conduct was nonconsensual. Appellant submitted his commission of these offenses while he also committed insurance fraud was adequately addressed by the consecutive nature of the sentences imposed.
Appellant concedes the possibility of consecutive sentences, based on the number of counts he pled guilty to, but he insists the court cannot then use the same factors (number of victims or insurance remuneration) to justify any departure from the standard sentencing guidelines. Appellant complained the sentence was too strict.
Generally, Pennsylvania law affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question.
A basic allegation that a sentencing court failed to consider or did not adequately consider certain factors does not raise a substantial question that the sentence was inappropriate.
On the other hand, an appellant raises a substantial question when he alleges the sentencing court erred by imposing an aggravated range sentence without consideration of mitigating circumstances. An allegation that the sentencing court provided inadequate reasons on the record for imposing a sentence above the standard range also constitutes a substantial question.
A sentencing court may consider any legal factor in imposing an aggravated range sentence. Provided there is an appropriate evidentiary link between the uncharged conduct and the defendant, the court may consider the conduct as relevant to the “protection of the public” sentencing factor.
The appellate court’s standard of review concerning the discretionary aspects of sentencing states: “Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.” [Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005)]
Where the sentencing court had the benefit of a PSI, the appellate court is allowed to assume the sentencing court was aware of relevant information regarding the defendant’s character and weighed those considerations along with mitigating statutory factors.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Jonathan D. Grine, the appellate court concluded the record belies Appellant’s claims, which in turn merit no relief. The trial court opinion comprehensively discusses and properly disposes of the complaints raised. Appellant abandoned all professional ethics when he engaged in sex acts with his highly vulnerable patients for seventeen years, failed to stop on his own, and isolated himself from other professionals and support people who warned him to stop. Appellant was unable to accept that his conduct was wrong. The trial court considered, for example, Victim N.M.’s impact statement and Victim A.M.’s allegations and explained on the record it imposed sentences outside standard range on both indecent assault charges, in light of Appellant’s monstrous offenses against his victims, whom he exploited and intimidated mentally and physically over long periods of time for Appellant’s own sexual gratification. The trial court’s belief Appellant is a poor candidate for rehabilitation and the court’s explained on record it imposed aggravated range sentences for insurance fraud offenses because Appellant systematically sought and received financial gain from his victimization of his patients.
As a result the appellate court concluded that the trial court properly fashioned an aggregate sentence for the Appellant under the circumstances. The sentencing court considered the particularly heinous specifics of the offenses, which Appellant perpetrated for many years while he occupied a position of trust, as well as his character and lack of remorse.
Dr. Lenhart is a perfect example of unmitigated gall. To state, after using his profession as a means of convincing vulnerable women to allow him to sexually abuse them – the equivalent of a rape by fraud – and then to charge insurance companies for the activities that he claimed was treatment, is probably the most egregious form of insurance fraud coupled with sexual misconduct.
© 2018 – 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 firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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