CINCINNATI (FOX19) - A federal judge has delayed Evans Landscaping owner Doug Evans’s prison report date for the fourth time amid COVID-19 concerns - and now Evans wants serve his entire sentence under home confinement, court records show.
Evans was to report Oct. 5 to a federal prison in Lexington and begin serving a 21-month sentence for minority contracting fraud.
But U.S. District Court Judge Michael Barrett granted this latest delay on Wednesday until Jan. 8, 2021, after Evans' attorney argued in court records Evans is at high risk to contract the novel virus with no vaccine or cure at this point while in prison.
The judge is now considering Evans request to serve his prison sentence at home.
It’s not clear when Judge Barrett will rule.
"Evans suffers from a number of pre-existing conditions and is “at significantly increased risk for sickness and death from coronavirus given his advanced age (58), hypertension, obesity (BMI of 46.7), prediabetes, sleep apnea and history of idiopathic thrombocytopenic purpura,” his lawyer, Ben Dusing, wrote in his request to the court.
"Evans had his spleen surgically removed because of a medical condition known as idiopathic thrombocytopenic purpura.. The lack of a spleen leaves a patient like Evans immunocompromised for the rest of his life. In addition to this condition, Evans is also affected by obesity and has pre-diabetes, conditions which heighten his susceptibility to and likelihood of mortality from COVID.
“If he is incarcerated during this pandemic,” the request continues, “he would not have access to his normal treating physicians who are familiar with his medical conditions and medical history. His nearly inevitable infection would be a threat to the other prisoners incarcerated with him as well as the employees at that prison.”
A doctor has concluded Evans' “personal history and background makes him the poster child for home confinement, not only for his health, but for the health and safety of all (prison) personnel,” his lawyer wrote. “Not only is Evans at higher risk of hospitalization—his very life is in danger.”
Federal prosecutors are fighting Evans' request to change his prison sentence to home confinement, noting in court records the judge already delayed Evans prison report date until April 7 and then July 7 and then Oct. 5.
They prefer the judge issue another delay instead of changing Evans' sentence, according to court records they filed Sept 1.
“The government acknowledges that the COVID-19 pandemic has created new challenges for the judicial system,” they wrote. “However, these challenges are not expected to be permanent. Indeed, this is likely a temporary situation.”
Authorities with the U.S. Attorney’s Office for the Southern District of Ohio also point out the court lacks jurisdiction to change the sentence at this point because Evans has appealed the case to the Sixth Circuit Court of Appeals.
Barrett and the appeals court have all denied Evans' motions to be released pending his appeal and the appeals court also denied his motion to reconsider, according to court filings.
“Thus, on three occasions, two courts have ruled that Evans' appeal does not raise any substantial question of law or fact,” federal officials noted.
What more, they say, Evans is expected to report to a federal medical prison facility in Lexington that has only one inmate with COVID-19 and an adjacent minimum security prison campus.
"Evans states a general concern about coronavirus in the prison system at large, but he does not identify any specific health issues at FCI Lexington. As of the date of this filing, only 1 inmate and zero staff at (the medical prison in) Lexington are currently positive for COVID-19.
“Visiting has been completely suspended and (prison in) Lexington maintains a medical facility on site. In contrast, Hamilton County is at a Level 2 Emergency, which applies to increased exposure and spread. Evans has not established that he is more likely to contract a serious COVID-19 illness at a controlled-access medical facility in Lexington, as compared to continuing to work in his Hamilton County office with hundreds of employees traveling throughout the city every day.”