Section: CAPITAL REGION
Page: D2
Date: Sunday, January 9, 2000

COURT ALLOWS KILLER TO CHANGE 1992 PLEA

A city man who since 1992 has been appealing his guilty plea for strangling a woman was allowed to enter a new plea Friday to second-degree murder and receive a lighter sentence -- even though he told a judge he now doesn't remember killing the woman.      Frank DiDonato, 36, admitted to Schenectady County Judge Michael C. Eidens that he beat 48-year-old Collene Johengen with a kitchen pot before strangling her on Jan. 4, 1991.

``Do you admit you acted in a reckless manner?'' Eidens asked DiDonato.      ``Quite possibly it was reckless,'' DiDonato said.      ``Why did you go to that particular apartment of that lady?'' Eidens asked.      ``I have no idea,'' DiDonato answered.      DiDonato maintains he has recovered from alcohol and drug abuse problems that plagued him at the time of the crime.      In 1992, DiDonato pleaded guilty to several counts, including second-degree intentional murder and first-degree burglary, for which he has been serving a sentence of 20 years to life. In July, a midlevel appeals court panel ordered the County Court to re-examine DiDonato's plea. In their ruling, the justices said the lower court must examine whether DiDonato clearly understood what he agreed to at the time.      In November, Randall Kehoe, DiDonato's attorney, moved to vacate the plea, contending that DiDonato did not understand the seriousness of his plea because he thought he would eventually be eligible for a psychiatric defense and require a trial. That defense was denied in 1996 when the state Court of Appeals upheld a county judge's ruling that DiDonato failed to comply with a law requiring suspects to promptly notify the prosecution of such a defense.      On Friday, Eidens allowed DiDonato to withdraw his first plea and plead guilty to single counts of second-degree reckless murder and first-degree burglary. He will be resentenced by Eidens next month to 15 years to life, making it possible for him to be paroled within seven years. Under the old plea, parole may not have been possible before 2012.      On the day of the crime, DiDonato called police at 6:30 a.m., saying he discovered the bludgeoned and partially clad body of Johengen in the lobby of the Lafayette Street building, which he managed. But later that day, police charged him with murdering her in her apartment.      When DiDonato pleaded guilty in 1992, then-County Judge S. Peter Feldstein told DiDonato he could later back out of that plea depending on the outcome of DiDonato's outstanding appeal of an earlier court ruling that said he was ineligible for a psychiatric defense. In addition, DiDonato did not sign a waiver of his right to appeal.      Marcel LaJoy, the defense attorney who originally handled DiDonato's case, said appeals resulting in successful reversals of guilty pleas are very rare.      ``There were only four in the state last year,'' LaJoy said.

     As part of Friday's guilty plea, DiDonato was required to sign a waiver of appeal.