Former Allegheny County councilman Chuck McCullough, sentenced to 2-1/​2 to five years in prison, said in motions filed Monday that his punishment is “manifestly excessive” and “vindictive.”

In a 30-page post-sentence motion, defense attorney Adam Cogan raised several issues, including that the evidence against his client was insufficient; that McCullough had no conscious intention to steal from his victim, as required to prove theft; that he was denied due process; and that there was an abuse of the justice system in how his request to remove the judge on the case was handled.

In addition, Mr. Cogan asks that his client be permitted to remain free on bond pending the outcome of his appeal. Right now, McCullough is slated to appear in court Jan. 22 and presumably will be taken into custody that day. Common Pleas Judge David R. Cashman, who sentenced McCullough on Dec. 17, permitted him to remain free until then.

The criminal case, which dates to 2009, has been fraught with delays and attorney changes. The most recent issues involved McCullough’s request to have Common Pleas Senior Judge Lester G. Nauhaus recuse himself from the sentencing. McCullough alleged in filings in November that Judge Nauhaus had improper communications with his previous defense attorney, Jon Pushinsky, and that it was those conversations that forced McCullough to have a nonjury trial before Judge Nauhaus.

The matter was referred to Common Pleas President Judge Jeffrey A. Manning, who held an evidentiary hearing on the allegations in November. Judge Manning granted a request by an attorney for Judge Nauhaus to stop him from testifying, as well as another by an attorney for Mr. Pushinsky, who claimed he could not testify without a full waiver of attorney-client privilege. At the conclusion of the hearing, Judge Manning found the allegations by McCullough were unsubstantiated, and he denied the motion to recuse.

However, on the day of sentencing, instead of Judge Nauhaus taking the bench, it was Judge Cashman. Judge Cashman later explained that the case had been assigned to him because of health concerns by Judge Nauhaus.

But in McCullough’s newest motion, Mr. Cogan notes that Judge Nauhaus was in the courthouse that day and in Judge Cashman’s chambers before the hearing.

“The multitude of procedural and substantive errors in the handling of the recusal motion could not be swept away on the basis that a different judge formally announced the prison term,” Mr. Cogan wrote. “Such a process cannot be countenanced since recusal would have mandated a complete separation of Judge Nauhaus from this case and not simply his absence from the courtroom at the time of sentencing.”

Mr. Cogan also wrote in his motion that under the sentencing guidelines, McCullough, who was found guilty on charges of theft by deception and theft for issuing checks from the account of an elderly widow he represented, could have received probation in the case. Instead, Judge Cashman ordered a sentence of six to 12 months on each of five counts, to run consecutively. Based on McCullough’s lack of a prior record, and history of public service and good character, Mr. Cogan said, “Incarceration serves only vindictive purposes in this case that have no place in a proper sentencing procedure.”

Paula Reed Ward: 412-263-2620 ; pward@post-gazette.com.

First Published: December 29, 2015, 5:18 a.m.