In a confrontation fueled by drugs and alcohol nearly three years ago, Joe DiLello shot and killed his older brother, Michael, hitting him with 10 bullets from a .22-caliber rifle.
Michael DiLello, 33, was trying to break into his younger brother's Clearfield mobile home at 4 a.m. on Nov. 7, 1993, during an argument that started hours earlier at a party.The younger brother fired at him 14 times with the rifle, hitting him 10 times, several of which could have been fatal, according to police.
Joe DiLello, then 27, claimed he feared his older brother's near-legendary temper, was afraid for his wife and child, and was acting under Utah's defense of habitation law when he fired the shots.
His now ex-wife has since turned against him, charging that Joe, too, is violent and gun-obsessed. But the rest of Joe and Mike DiLello's family support Joe and want him released from prison.
Prosecutors charged him with murder but after nearly two years of court hearings, appeals and plea bargaining, Joe DiLello pleaded guilty to a third-degree felony charge of aggravated assault and was sentenced in August 1995 to a term of zero to five years in prison.
Second District Judge Jon M. Memmott added a five-year firearms enhancement penalty to run consecutively to the assault term.
An appeal on the enhancement landed Joe DiLello back in Mem-mott's court on Tuesday, along with some of his brothers who submitted letters from family and friends asking for Joe's release.
The Utah Court of Appeals recently sent the case back to Mem-mott for resentencing, pointing out that the enhancement sentence was entered in the court file as being for five years instead of the zero-to-five-year term spelled out in the statute.
Memmott interprets the remand order as only applying to the enhancement term and not the original sentence. Defense attorney Greg Skordas believes the sentencing process should start over from the beginning, with Joe DiLello released from prison while a new pre-sentence evaluation procedure is done.
Memmott agreed Tuesday to a new evaluation and set sentencing for Nov. 12. But he declined to let DiLello out of prison in the interim.
"We want to see Joe out of prison," said his twin, John DiLello, after the hearing. "He should never have gone to prison in the first place."
He submitted several letters to the judge from family members agreeing that Mike DiLello had a fierce temper, worsened by his cocaine addiction and alcohol problems.
Mike DiLello repeatedly threatened family members, fought with them and put at least two of his brothers in the hospital, according to the letters.
While saddened at Mike's death, John DiLello said the family does not blame Joe DiLello for what he did and has rallied around him.
"Prison is hard on Joe, but he's handling it very well," John DiLello said. "He has a job there, doing computer work, and he's taught computer classes for the other inmates.
"He's taking a positive approach, but we don't think that under the circumstances he should have gone to prison in the first place. And we think that 14 or 15 months in prison is long enough," John DiLello said.