Wednesday, July 24, 2024

Commissioner Berger granted jail diversion program; probation extended a year

New Hanover County Commissioner Brian Berger stands before the court as District Judge Robin Robinson delivers her sentence in a probation hearing Tuesday. Photo by Jonathan Spiers.
New Hanover County Commissioner Brian Berger stands before the court as District Judge Robin Robinson delivers her sentence in a probation hearing Tuesday. Photos by Jonathan Spiers.

New Hanover County Commissioner Brian Berger will remain on supervised probation for 12 more months as part of his sentence for violating terms of a previous probation earlier this year.

At a hearing today, District Judge Robin Robinson granted Berger entry into a jail diversion program and extended his probation for a year from today, with 165 days suspended on condition that he satisfies the terms of his probation.

Prosecutors argued Berger has proven he is not a viable candidate for probation, having violated those terms before by absconding supervision and being found in possession of multiple weapons and drug paraphernalia at the time of his most recent arrest in June in Avery County. Assistant District Attorney Alex Nicely said Berger has shown he is a danger to the community and to himself.

But Robinson said that danger to himself was why she was leaning toward the jail diversion program, noting that Berger did not have much time left to serve.

“He may be a danger to himself or others, but he doesn’t have much time left to serve anyway,” Robinson said. “So why not at least give one more shot at trying to turn things around for Mr. Berger, so that when he does get out, he can go forward and resume leading a productive life…”

Berger has been in the New Hanover County jail—before being moved to Central Prison in Raleigh last week—on the probation violation charges since his arrest June 10. He was already facing 120 days suspended on an impaired driving charge that was part of his previous plea deal.

The additional 45 days added onto that sentence resulted from Robinson finding Berger guilty of possession of a controlled substance—another charge that had been suspended as part of that deal that was ordered in February.

Robinson addresses Berger while delivering her sentence. 'We want to reinvest in getting you back on track,' she said.
Robinson addresses Berger while delivering her sentence. ‘We want to reinvest in getting you back on track,’ she said.

Robinson noted that, if Berger violates the terms of his probation again, he would face 75 more days in jail, as Berger has already served 90 days of his initial suspended sentence.

Berger is to remain in custody until arrangements can be made for his jail diversion program. Once released on probation, Berger would be required to wear an electronic monitoring device, though Robinson noted he would not be under house arrest or a curfew.

Among the terms of his release, Berger would be required to maintain residence in New Hanover County and report to his probation officer. Robinson was told Berger would be staying with a friend who had agreed to the arrangement.

Berger has three months remaining on his term as a county commissioner. He has not attended a regular meeting since his arrest on impaired driving charges last December.

After delivering her sentence, Robinson addressed Berger directly.

“Mr. Berger, we wish you the best,” she said. “We appreciate the service you have given our community. We’re sorry that you’ve gone through some hard times. We’re sorry that most of those hard times you’ve endangered yourself and others, as the state record pointed out.

“We have a great deal of concern about the seriousness of the crimes that you’ve been convicted of at this point. But we want to sort of reinvest in getting you back on track,” Robinson said, “so that when you’re off probation, [and] during the period of time that you’re still on probation, you can address the things that have caused the [charges] you are now facing.”

Today’s hearing continued proceedings from July, when Robinson ordered a second mental health evaluation of Berger after an initial assessment found him incapable of participating. Robinson said that second assessment found Berger was competent to go forward with today’s hearing, and she said the report also found that Berger does not currently meet the criteria for Asperger disorder, considered a high-functioning form of autism.

In a hearing last year that resulted in Berger’s removal from the county board of commissioners (he was later reinstated by a judge on appeal), his attorney stated publicly that Berger had been diagnosed with a form of autism. While the second assessment found that was not the case, Robinson said the forensic psychiatrist’s report did find that Berger suffers from a high degree of anxiety and recommended counseling to treat that anxiety.

Assistant Public Defender Mercedes Pinckney and Assistant District Attorney Alex Nicely argue their cases to Robinson during today's hearing.
Assistant Public Defender Mercedes Pinckney and Assistant District Attorney Alex Nicely argue their cases to Robinson during today’s hearing.

During the hearing, a police sergeant from Beech Mountain who encountered Berger before his arrest in Avery County testified about the events of that day. He said before officers would later arrest Berger after finding multiple weapons in the house where he was staying, Berger refused to open the door for the sergeant, stating that the sergeant’s “brother” was going to hurt Berger’s dog.

Related story: Commissioner Berger in custody in Avery County

In other testimony, John Corwin, Berger’s probation officer, said Berger absconded from supervision before his emergence in Avery County by failing to maintain a permanent residence. He said Berger had been living at a residence in Carolina Beach before listing his address as the Jameson Inn in Wilmington and eventually living out of his car.

“So he did not have a permanent residence in New Hanover County,” Corwin told the court.

The district attorney’s office requested that Berger receive an active jail sentence, contending that Berger had violated probation and was more than likely to do so again.

Addressing Robinson, Nicely, the assistant district attorney, said: “Mr. Berger clearly has some issues that he’s dealing with that he needs some help with all of those issues. The problem we have is that…Mr. Berger didn’t comply with anything at all. I have no confidence at all that he would comply with any of those terms. He’s made clear that he would not do that.

“Whether that’s due to his mental issues or not, I don’t know,” Nicely said. “But what I do know is he’s made it clear that he’s not a good candidate for probation. I don’t know what else he could do to make that point clear, but I think he has made that point clear with all of the violations on every front.”

Assistant Public Defender Mercedes Pinckney said Berger is not above seeking help and has suffered incidents in jail that warrant consideration. Robinson asked if Berger would be eligible for a jail diversion program, and she was told he could be so long as he attends all counseling sessions and reports his residence to his probation officer.

Berger is escorted out of the courtroom after receiving his sentence. He was to remain in custody until his jail diversion program could be arranged.
Berger is escorted out of the courtroom after receiving his sentence. He was to remain in custody until a jail diversion program could be arranged.

Nicely maintained that Berger would be a danger to the public and himself, noting Berger had been arrested twice on impaired driving charges and was found in Avery County with multiple weapons and ammunition. “It would be very dangerous for him to be back out,” he said.

But Robinson said that statement was the reason why she wanted to continue Berger’s supervision—because he could be a danger if released otherwise, once the weeks that remained on his sentence had been served.

“We don’t have a lot of room left on the probationary sentence to work with,” Robinson said. “He’s already done most of his time already. So that puts us in a difficult situation.”

Past stories:

Jonathan Spiers is a reporter for Port City Daily. He can be reached at (910) 772-6313 or jonathan.s@portcitydaily.com. On Twitter: @jrspiers

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