The attorney for a former Northumberland County correctional officer plans to file a post-conviction petition to prevent his client from serving jail time on felony drug-related charges.

Attorney Edward E. Kopko of Ithaca, N.Y., said incarcerating Kazimir Craig "KC" Grohowski would be a "grave injustice" since he is innocent and was acquitted by then-President Judge Robert B. Sacavage after being initially convicted by a jury.

In an email sent to The News-Item by Grohowski that he received from Kopko, the attorney opposes a motion filed by Senior Deputy Attorney General David Gorman of State College for Grohowski to begin serving his sentence as soon as possible and plans to file a post-conviction petition with the Court of Common Pleas.

"I respectfully request the court to extend the time to respond to the commonwealth's motion and at the same time, permit the commonwealth the opportunity to respond to my post-conviction petition," Kopko writes.

Kopko, who was was unavailable for comment Wednesday, tells Grohowski in the email, "We are not finished yet. Be patient."

In his answer Tuesday to Gorman's motion to commence sentence, Kopko denies that all appeals in the case have been exhausted and states he plans to assemble the necessary documents to support his petition.

He said Grohowski has not received all the papers on appeal from the Superior Court and said a post-conviction relief act was not exhausted because it was never filed.

Kopko said Sacavage acquitted the defendant, finding that insufficient evidence supported the jury's verdict. He also said the judge found that his client was denied effective counsel at trial and that Gorman engaged in prosecutorial misconduct by making a prejudicial remark during his closing argument.

Kopko said the commonwealth appealed Sacavage's acquittal to the Superior Court, which reversed the acquittal on an obscure jurisdictional issue, not on the essential issues of failure of proof, ineffectiveness of counsel and prosecutorial misconduct.

He said the Supreme Court denied a petition for allowance of appeal on the jurisdictional issue, not the meritorious findings of Sacavage.

Kopko added, "The defendant is an innocent man, having been acquitted by this court. Judge Sacavage's decision is supported by substantial, overwhelmingly persuasive evidence, and the defendant seeks the opportunity to present the evidence to the court pursuant to the post-conviction relief act."

The attorney is requesting the court to issue an order denying the motion to begin sentence and to allow him to submit a post-conviction petition no later than April 5.

Acquitted in 2011

Grohowski, 42, of Mount Carmel, was convicted in 2006 of felony drug-related charges before being acquitted in 2011 by Sacavage.

But a Dec. 3 ruling by the state Supreme Court agrees with Gorman that the sentence should be reinstated.

The Supreme Court's ruling upheld a Superior Court decision from May 22 that vacated Sacavage's ruling for acquittal.

Sacavage made that ruling on June 23, 2011, after post-sentence motions were filed by Kopko on Jan. 26 of that year. The higher courts found that the court would have had to rule within 120 days - by May 26, 2011 - on the post-sentence motions as required by law.

In essence, neither of the higher courts are saying Sacavage's ruling of acquittal was wrong, but that it came too late.

The Superior Court ruling was appealed by Kopko, but when the Supreme Court upheld it, Gorman took action.

He requested an order be signed by a Northumberland County judge to hold a hearing in the near future, after which Grohowski would be remanded to the custody of the county sheriff's office for transport to the State Correctional Institution at Camp Hill, where state inmates are processed before being assigned to a prison to begin their sentences.

Six other guards

Gorman prosecuted the case against Grohowski and six other current or former prison guards charged April 14, 2004, in connection with a two-year grand jury investigation into offenses allegedly committed between 2000 and 2002 at the prison.

Charges against one of the other guards were withdrawn. Another guard was acquitted of drug charges during a 2005 trial and allowed to return to work at the prison. The other four guards entered guilty pleas and received various sentences, but avoided spending time in prison.

Grohowski was found guilty by a jury of three counts of delivery of contraband - cocaine, methamphetamine and marijuana - to an inmate at the jail during a jury trial in September 2006. He was found not guilty of aggravated assault against an inmate.

Following his conviction and prior to being sentenced, Grohowski, through Kopko, filed a motion for a new trial, citing ineffective counsel by Richard Feudale.

New trial in 2007

In August 2007, Sacavage granted the new trial, citing a need for "extraordinary relief." Among the key issues was that Feudale didn't object to Gorman, in his closing argument, asking the jury to consider sending a "message" by finding Grohowski guilty. Sacavage said Grohowski's case was prejudiced by that remark.

He also said physical evidence supporting the guilty verdict was insufficient and that the prosecution relied on circumstantial evidence presented in the testimony of three inmates. He said that testimony amounted "to little more than vague assertions that they had received drugs from the defendant."

Gorman said the "message" statement had no bearing on the jury's verdict and he defended Feudale by pointing out that he filed pre-trial motions in the case and attacked the creditability of various witnesses, including inmates.

Gorman appealed Sacavage's ruling to the Superior Court, which in summer 2009 ruled in a 3-2 decision that extraordinary relief was not justified because the appeals process shouldn't occur until after sentencing.

So Sacavage's ruling for a new trial was overturned and the case proceeded to sentencing based on the original conviction. In October 2009, Sacavage sentenced Grohowski to two to four years in state prison based on the original conviction.