Published: July 01, 2008 11:35 am      

Court trims molester's prison term

Logan man will serve 60 years instead of 150

The Indiana Court of Appeals voted 2 to 1 to take 90 years off the jail sentence of a Logansport man convicted of five counts of child molesting.

The decision, issued last week, orders Donald Jess Smith Jr., 38, to serve 60 years in prison. The court found that Cass Superior Court II Judge Rick Maughmer failed to take Smith’s lack of criminal history into account when issuing the sentence.

Maughmer found Smith guilty on all five counts of class A felony child molesting and sentenced him to five consecutive 30-year terms during a bench trial in December.

The charges stemmed from separate sexual relations with the same victim in Logansport between 1997 and 2000. Smith had been babysitting the victim at the time of the offenses. The victim, who was 10 at the time of the first alleged incident, did not report the crimes until 2005.

The Logansport Police Department investigated the allegations, and Smith was arrested in January 2005. He remained in the Cass County Jail until his trial.

At the sentencing hearing, Cass County Deputy Prosecutor Randy Head asked Smith what he thought the sentence should be. Smith eventually said he could “live with whatever the victim thinks.” Christina Cox, a Cass County probation officer, testified that the victim told her over the phone that Smith should receive the “maximum amount he could get.”

Head called for 50 years in jail for each count, saying the most important consideration was Smith’s position of trust.

Smith’s public defender, Brad Rozzi, pointed out Smith’s clean record and military service. He also asked the judge to consider that the defendant never denied the allegations. Rozzi asked for a sentence of between 20 and 30 years

In his ruling, Maughmer agreed with prosecutors that Smith had abused his position of trust, calling the defendant’s actions a “horrible, horrible crime.”

But the appeals court found that Maughmer had abused his discretion in not considering Smith’s lack of criminal history, a standard mitigating factor for sentencing.

“Smith’s crimes ... were despicable, but we cannot conclude that they warrant consecutive sentences totaling 150 years,” said the majority decision, written by Judge Nancy Vaidik.

Rozzi said the reducing of a sentence in a child molestating case was rare, given the nature of the crime and publicity surrounding it. He called the favorable verdict “almost an act of God.”

The decision may allow Smith to leave jail alive, said the attorney, calling the ruling “decent.”

“You can make the argument the prior sentence was more or less a life sentence,” Rozzi said. “But now he’ll get some salvageable time at the end of his life.”

Prosecutors disagree with the ruling, but will accept it, Head said.

“I felt at the time of the sentencing, and I feel now that a 150-year sentence was appropriate given Smith’s violation of trust and abuse of the victim,” he said. “However, I accept the decision of the court of appeals. It’s time to move on.”

Brian Rosenthal can be reached at (574) 732-5148, or via e-mail at Brian.Rosenthal@pharostribune.com