A 75-year-old former Weston man who has served two years in state prison took another step earlier this month toward learning when he will face a second resentencing, following a status conference in Oneida County Circuit Court.
Lincoln County Judge Jay Tlusty, who is the fourth judge to be involved in a case that was originally filed on Sept. 10, 2013, set Harry Turner's sentencing for April 27. At that time, Tlusty will sentence Turner based on the information available to Oneida County Judge Patrick O'Melia.
After he pled no contest to one count of first-degree and second-degree sexual assault of a child, O'Melia, sentenced Turner to eight years in prison followed by eight years of extended supervision.
At issue - at both the original sentencing and at an April 13, 2017 resentencing hearing Turner won based on appeal - is the Oneida County District Attorney's office did not request the sentence that district attorney Mike Schiek agreed to with Turner's original lawyers Brian Bennett and Michael Brennan.
Under the terms of the plea agreement, the state was to recommend O'Melia sentence Turner to 20 years probation, house arrest for one year, and $10,000 in restitution to the victim for counseling expenses. He would also be required to write a letter of apology to the victim.
He faced a maximum penalties of 60 and 40 years in prison, respectively, on the charges, if he had not accepted the agreement and had been found guilty at trial.
At the time he entered his plea, O'Melia reminded Turner that judges are not bound by the terms of plea agreements and don't have to follow the sentencing recommendations in pre-sentence investigations. Turner told the judge he understood this, but still wished to plead no contest. O'Melia then accepted the plea and found Turner guilty.
Turner was accused of having repeated sexual contact with a boy who has a cognitive disability when the child was under the age of 13. The incidents occurred in the summer of 2008 when Turner lived in the town of Nokomis, according to the criminal complaint.
The more serious of the two charges was filed on Sept. 10, 2013, after an Oneida County Sheriff's Office investigation was conducted in June of that year. According to court testimony, the victim told a relative about the abuse and the relative contacted authorities. The victim told investigators that the sexual contact with Turner occurred often and in three different locations - including Nokomis - when the child was between the ages of 7 and 12. The victim also talked about other children with whom he believed Turner had sexual contact, according to the report attached to the complaint.
The author of the pre-sentence investigation report recommended a prison sentence of between 13 and 16 years, followed by three to four years of extended supervision.
At the original sentencing hearing, the DA's office was represented not by Schiek, who had negotiated the plea agreement, but by assistant district attorney Steve Michlig. Michlig said he could understand why Schiek entered into the agreement, primarily to spare the now 19-year-old victim having to testify at trial. He then went on to point out the seriousness of the offense and the PSI recommendation before asking O'Melia to go along with the sentencing recommendation called for in the plea agreement.
Brennan agreed with Michlig's characterization of the case as "difficult." He also said the pre-sentence investigation was more focused on the punitive aspect rather than treatment aspect of the case.
"Mr. Turner has accepted responsibility for this with his plea," Brennan said. "If you look at the sentence recommendation, it really is the right sentence given his age and his health."
As a former prosecutor, O'Melia said he understood Schiek's position when weighing the options on a sensitive case such as this one.
"I'm sure that the victim did not want to testify for the reasons stated in the letters from family members and from him," O'Melia said. "He's confused and angry, and I'm sure a trial wouldn't have assisted that."
Due to the aggravated nature of the offense, this was not a case where probation, even a lengthy term, was in order, he added. O'Melia said the pre-sentence report's suggested sentence of 18 years behind bars was harsh, and amounted to a life sentence.
"But to not put him in custody would totally depreciate the seriousness of this case," O'Melia added.
On Dec. 15, 2015, Turner filed a motion for post-conviction relief alleging that Michlig's lengthy recitation of the aggravating circumstances of the case amounted to a breach of the plea deal.
O'Melia agreed and ordered a new sentencing hearing in front of a different judge.
The resentencing hearing was held before Price County judge Douglas Fox, with public defender John Voorhees representing Turner.
At that hearing, both Schiek and Voorhees told Fox that the sentencing recommendation in the original plea agreement was "unrealistic" and both sides agreed to change the terms of the agreement so that Schiek would ask for six years of initial confinement and 14 years extended supervision, with Voorhees free to argue for a shorter period of incarceration.
Before handing down his sentence, Fox noted that the original sentencing recommendation in the original plea agreement was "absolutely unrealistic."
"It was something that I think not one of the 245 circuit court judges in this state would have followed," Fox said, according to the transcript of the hearing.
He later added that probation, although that was what the plea agreement required both sides to jointly recommend, was not "really on the table."
"Given the prior record, given the aggravated circumstances here, and given the need for protection of the community, this is not a probation case," Fox said. "It never was and never would be."
He then said if this had been his case from the beginning, he would have imposed a sentence of 10 years in prison followed by 10 years of supervision. Instead, he handed down an eight-year sentence to be followed by two years of supervision.
On Nov. 22, 2017, through public defender Hannah Jurss, Turner filed a second motion for post-conviction relief. In this motion, Jurss asserted that this time not only did the DA's office not abide by the terms of the plea agreement, but Voorhees did not give Turner proper representation. This amounted to a breach of the plea agreement on Schiek's part and ineffective assistance of counsel on Voorhees' part, Jurss asserted.
She also claimed that, due limited cognitive abilities, Turner really didn't know what he was agreeing to at the second sentencing hearing and Voorhees should have been aware of this fact in advance.
Finally, Jurss argued that in a plea breach case, if the defendant can show that counsel performed deficiently, prejudice is presumed. This standard, she said in her motion, "precludes any need to consider what the sentencing judge would have done if the defense counsel had objected to the breach by the district attorney."
"When a negotiated plea rests in any significant degree on a promise or agreement of the prosecutor, such promise must be fulfilled," she wrote, citing case law.
On Jan. 12, 2018, Vilas County Judge Neal Nielsen III ruled in favor of Jurss's motion and ordered another sentencing hearing in front of yet another judge, with a limitation on what material that judge would have at that hearing, and found that the DA's office must honor the original plea agreement, court records show. He further clarified what records the new judge would have access to during a telephone conference Feb. 1.
At the March 2 hearing, Tlusty noted some of the reports he has to review prior to the sentencing were nearly three years old. Schiek and public defender Elizabeth Svehlek told Tlusty that Nielsen's ruling stated that the sentencing judge can only review the reports O'Melia had available at the time of the original sentencing.
Jamie Taylor may be reached via email at email@example.com.
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