A judge in Shenandoah County dismissed a reckless driving charge against a woman who claimed a prosecutor violated her rights

Judge Kevin C. Black dismissed the charge against Kathryn A. Plofchan, according to an order filed Oct. 8 in Shenandoah County Circuit Court. Black took roughly a month to consider arguments made by Plofchan’s defense counsel, Jessica E. McCollum, and Assistant Commonwealth’s Attorney Amanda Strecky before reaching his decision.

Plofchan claimed in her motion to dismiss that the prosecutor violated her constitutional right to due process and “engaged in impermissible prosecutorial misconduct” by seeking to indict the defendant for a greater charge than originally brought in the General District Court.

Plofchan’s attorney cites court decisions in Blackledge v. Perry, Duck v. Commonwealth and Allen v. Commonwealth to support the defendant’s motion to dismiss. Strecky relies on other cases, identified as Blockburger v. United States, and argues that the commonwealth was not barred from indicting Plofchan on the reckless driving charge.

Black sided with the defense.

“While in this case the reckless driving charge now being pursued by the Commonwealth may possibly survive the double jeopardy tests articulated in Blockberger and Grady, the Defendant’s motion to dismiss is not made on double jeopardy grounds, but rather on due process grounds,” Black states in his letter.

The judge heard arguments Aug. 28 on a motion to dismiss filed by Plofchan’s attorney. The defendant claimed prosecutorial misconduct, lack of jurisdiction and that the commonwealth had violated her right to due process.

Strecky appeared for the prosecution. Thomas K. Plofchan appeared for the defendant. Each party filed memoranda prior to the hearing in support of their positions. Thomas Plofchan, of Westlake Legal Group, would not say Tuesday his relationship to the defendant. He did say he was satisfied with the court's decision to dismiss the case.

Strecky argued against the motion to dismiss that the commonwealth still could have sought an indictment against Kathryn Plofchan for reckless driving despite the outcome of the original charge of failing to yield the right of way. The charges pass a test for double jeopardy and, therefore, the commonwealth can bring the reckless driving charge even if the court dismissed Kathryn Plofchan’s previous charge of failure to yield the right of way.

Authorities accused Kathryn Plofchan of causing a motor vehicle crash on May 28, 2018, on John Marshall Highway near Strasburg. A judge in Shenandoah County General District Court on Oct. 23 found Kathryn Plofchan guilty of failing to yield the right of way and imposed a $100 fine.

Kathryn Plofchan appealed the decision to the Circuit Court. The case came before the court on March 20 at which time the prosecutor made a motion to dismiss the charge by order of nolle prosequi which, if granted, would have allowed the commonwealth to bring back the matter. The defense objected and, when the prosecutor told the judge she did not want to reschedule the matter, the court dismissed the case, barring the commonwealth from bringing back the charge. The court entered a dismissal order on April 8.

A grand jury handed up an indictment on May 8 charging Kathryn Plofchan with reckless driving on May 28, 2018. As Black notes in his letter, the reckless driving charge is based on the same incident as was the basis for the charge of failing to yield the right of way. The prosecution alleged no new facts or circumstances in its indictment on reckless driving.

McCollum filed a motion Feb. 6 to suppress evidence claiming authorities violated her client’s right as a result of an illegal arrest. Kathryn Plofchan goes on to claim that the commonwealth’s attorney “engaged in impermissible prosecutorial vindictiveness.”

– Contact Alex Bridges at abridges@nvdaily.com