ELKO, Nev. — One of the two West Wendover High School students accused of killing a classmate and burying her body in a shallow grave in the desert will take a plea deal.
Toni Fratto, 19, has signed a plea deal with the Elko District Attorney's Office, according to her attorney, John Springgate, in connection with the killing of 16-year-old Micaela "Mickey" Costanzo on March 3, 2011.
A hearing is scheduled for Friday in Elko. If a judge approves the plea deal, Fratto will plead guilty to second-degree murder with a sentencing enhancement for using a deadly weapon, Springgate said.
In Nevada, a second-degree murder conviction carries a sentence of 10 years to life with a possibility for parole after 10 years. A deadly weapon enhancement carries a penalty of one to 20 years to run consecutively after parole.
"She's looking at a potential 18 years," based on several factors, Springgate said.
The plea deal would spare Fratto from a possible death sentence or life without parole if convicted. Fratto was originally charged with first-degree murder and willful destruction of evidence.
Under the deal, Fratto will testify against her former boyfriend, Kody Patten, 18, who is still charged with first-degree murder. After Fratto's change of plea hearing on Friday, Patten has a hearing scheduled to ask that the death penalty be taken off the table as a potential penalty if he is convicted.
Fratto was originally scheduled to go to trial on her murder charge in just three weeks. Patten's murder trial is scheduled to begin in March.
Both are accused of taking classmate Micaela to a remote area in the desert near the Utah-Nevada border after Micaela had finished with track practice at West Wendover High School. Micaela was hit in the head with a shovel and her throat slit. Patten and Fratto then allegedly tried to burn several of the girl's personal items in another location.
But two very different stories of what happened emerged during separate preliminary hearings for Fratto and Patten last summer. Each defense attorney pointed fingers at the other defendant, accusing them of being the primary contributor to Micaela's death.
Fratto's arrest came two months after Patten's arrest during a bombshell revelation during a court hearing for Patten that Fratto had given a taped confession to Patten's attorney, John Ohlson.
Ohlson characterized Fratto as the main instigator in the case because of her jealousy over Micaela. Fratto's parents and attorney claimed Fratto was completely innocent and made up her confession because she loves Patten.
During the preliminary hearing, the taped confession seemed to be the only piece of evidence against Fratto with no physical or forensic evidence presented at that time linking her to the crime.
Fratto's attorneys have recently filed motions trying to have the confession thrown out.
When asked Monday whether his client had anything to do with Micaela's death, Springgate would only say, "She's taking a plea to second-degree murder."
Springgate said Fratto met last week with Elko District Attorney Mark Torvinen. He also noted that the day before that meeting, Patten also met with prosecutors in anticipation of making a plea deal of his own. But those negotiations broke down, Springgate said.
Patten was reportedly working on a plea deal similar to Fratto's that would have had him testify against his former girlfriend, according to the High Desert Advocate in Elko. A change of plea hearing was scheduled for Jan. 18, but a motion was never filed and the hearing was taken off the calendar, the newspaper reported.
"Both parties were actively trying to negotiate at the same time," Springgate said, adding that each plea negotiation was independent of the other.
"Our deal was separate from his," he said.
According to Springgate, Patten would have pleaded guilty to first-degree murder as part of his proposed plea deal. Fratto, however, was offered a deal to plead to a lesser second-degree murder charge. A first-degree murder conviction caries a minimum sentence of 20 years in prison.
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