A former Carbon County psychologist who was convicted of sexually assaulting a patient in his office back in February 2009, lost another appeal of his conviction and sentence in an memorandum opinion handed down by county President Judge Roger N. Nanovic.

Dr. Michael Degilio, 50, of Jim Thorpe, was sentenced on Nov. 17, 2014, to serve four to eight years in a state correctional institution followed by two years of state probation.

On May 14, 2014, a jury convicted him of involuntary deviate sexual intercourse, indecent assault and indecent exposure.

He did not begin serving the sentence until November 2016 as he remained free on posted bail pending an appeal of the jury’s verdict and Nanovic’s sentence. That appeal was denied first by Nanovic and then by the state’s Superior Court.

Degilio then asked the state’s Supreme Court to review the Superior Court’s denial, but that was rejected by the state’s highest court, ending that appeal process.

His latest appeal was filed under the Post Conviction Review Act by his new attorney, David S. Nenner. Degilio was represented at all prior court proceedings up to and including his trial and the filing of his post-conviction appeals by attorney John Waldron.

After his state appeal was denied Degilio hired Nenner to represent him.

In his latest appeal, Degilio claimed that Waldron was ineffective in his representation of him by failing to object to the admissibility of statements he made to the police respecting sexual relations he had with other women to explain how the victim, who Degilio denied having any sexual contact with, knew about a birthmark located on an intimate area of his body; failing to present character evidence on his behalf regarding his reputation for being peaceful, law-abiding and nonviolent; and failing to use the medical records of the victim’s hospitalization admissions immediately before and after the date of the assault to impeach or otherwise challenge the testimony of both the victim and the commonwealth’s expert describing the effects the medication she was prescribed had on her ability to resist and prevent the assault.

Prosecutors said the victim was being treated by Degilio for depression and anxiety.

In his 28-page opinion, Nanovic rejects Degilio’s contentions.

Mahoning Township police charged Degilio with sexually assaulting one of his patients when she was in his office on Feb. 24, 2009, for outpatient therapy.

The commonwealth contended that the victim’s emotional and mental state at the time of the assault, together with the prescription medication she was taking, made her particularly vulnerable and subject to physical and psychological manipulation.

Opinion

Nanovic states that a person appealing a conviction under the review act must prove by “a preponderance of the evidence” that the contentions made had to prove the underlying legal claim has arguable merit, trial counsel had no reasonable basis for action or failing to act and that the defendant suffered resulting prejudice.

Nanovic wrote, “If the petitioner (Degilio) fails to establish any one of these factors, the claim of ineffectiveness fails.”

After reviewing in detail, and using prior court decisions in other cases, Nanovic wrote the following conclusion:

“In these proceedings, Defendant does not claim he is not guilty, but that he was denied a fair opportunity to establish his innocence because of the ineffectiveness of his trial counsel. For the reasons discussed, we are not persuaded that Defendant’s trial counsel was ineffective or that any ineffectiveness claimed by Defendant ‘so undermined the truth-determining process that no reliable adjudication of guilt … could have taken place.”

Case history

Mahoning Township police officer Jeffrey D. Frace charged Degilio with having a then 40-year-old woman perform a sexual act during an office visit in February 2009. The charges were filed after the woman contacted township police.

The woman testified at trial that it was her second visit with Degilio after she had been released from the Blue Mountain Health System’s Lehighton Campus Behavioral Health Unit.

She said she was suffering from deep depression and was on medication. She said she was referred to Degilio by the hospital after the doctor she wanted to see was not available.

She said at her first visit that Degilio said he could help her.

Degilio denied having any kind of sexual contact with the woman and at trial testified that the alleged second meeting, when the woman claimed the sexual act took place, never occurred.

Degilio told the jury he only met with the victim for 10 minutes on Feb. 20, 2009, that he ended the interview after she had indicated she had a gun at home and thought of using it on herself.

He testified he told the woman if she wanted to continue treatment she had to get rid of the gun and come to her next appointment with her husband. He said she became belligerent when he mentioned that the husband would have to come with her.

He said he gave her two appointment dates, Feb. 24 and 27, because she didn’t know when her husband would be able to attend because of his work.

Degilio said the woman later said she would attend the Feb. 24 appointment, but he said she never showed up.

The woman testified that she did show up for the Feb. 24 appointment and that was when Degilio had her perform the sexual act.

She said she was seated on a couch and was forced to perform the sex act by Degilio.

The case was successfully prosecuted by First Assistant District Attorney Cynthia Ann Dyrda Hatton.

Degilio has a right to appeal Nanovic’s opinion to the state’s Superior Court.