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Will softer Theurer sentence stand?

Wilkerson hopeful, but judges have broad sentencing discretion

By Katherine Wartell

The controversial decision of a Riley County district judge to forego prison time for a man convicted of killing two people while driving drunk has led some to question the fairness of the departure. Among them are the prosecutors in the case and the victims’ families.

On Monday, District Judge John Bosch sentenced Miles Theurer, 24, Wellington, to 60 days in the Riley County Jail followed by 36 months of probation and 36 court-mandated speeches to be given at schools, churches and other such venues on the dangers of drunken driving.

Almost immediately after the ruling, the Riley County Attorney’s Office filed a notice that they planned to appeal to the Kansas Court of Appeals.

In May 2012, Theurer, operating his Chevy Silverado at twice the legal limit for intoxication, drove into the wrong lane of K-18 and struck head-on a Buick sedan driven by Elizabeth Young, 31, Ogden. Young’s fiancé, Michael Stanley, 30, Ogden, was in the passenger seat. Both died of severe trauma on the scene, the front half of their car completely crumpled.

“It was like we didn’t matter,” Kim Neidenthal, Stanley’s mother, said of the sentence. Though Neidenthal said her anger has been reserved for the judge’s decision and not Theurer, she cast her doubts on the effectiveness of Theurer’s future speeches when he only received a “slap on the hand” for killing two people. “What kind of message is he sending?” she said.

The office is within its rights to appeal, Riley County Attorney Barry Wilkerson said, because Judge Bosch’s sentence was not within the grid as set forth under the Kansas Sentencing Guidelines for a crime of Theurer’s level.

Had Judge Bosch stayed within that sentencing grid, which takes into account the severity of the crime coupled with a defendant’s criminal history, the appellate court would not review the case. 

Ron Keefover, education-information officer for the Kansas Supreme Court, said such appeals are not uncommon. But he would not speculate on the prospects for success, and added that the court does not track how many, if any, sentences are overturned.

Other sources within the Kansas judiciary, speaking on condition of anonymity, told The Mercury that appeals of the sort filed by Wilkerson have little chance for success because trial judges are given wide latitude to determine when a departure from the sentencing grid may be warranted. They indicated an appeals court would likely consider overturning the sentence only if there was evidence of circumstances beyond judicial judgment – such as undue influence or some other case-specific bias. That has not been alleged in this case.

Under the Kansas Sentencing Guidelines, Theurer committed a level 4 severity person crime—involuntary manslaughter while driving under the influence of alcohol—which could carry a presumptive prison sentence of up to 14 years. However, because Theurer has no criminal history, he falls on the very low end of the grid, which carries a prison sentence of up to about 3.5 years.

He was convicted of two counts of the charge, for both victims, but in a plea agreement signed in May, which recommended a sentence of 41 months for each count, both parties agreed the sentences should run concurrently, splitting his possible time in half. Additionally, with good-time credit, Theurer was looking at about 36 months in prison.

But during his plea, Theurer’s lawyer, Pedro Irigonegaray, noted that he would be filing a motion to depart from that presumptive sentence and in court Monday, he successfully argued against a prison sentence, invoking Kansas Statute 28-615 which states that a judge may depart from the presumptive sentence if he finds “substantial and compelling” reasons to do so.

Though the statute lists five mitigating and eight aggravating factors that are intended to act as guidelines for substantial and compelling reasons for departure, the list is non-exclusive and allows some measure of interpretation as to what is “substantial and compelling” at the discretion of the judge. As defined by Kansas statutes, to be substantial, the reason must be “real, not imagined,” while a compelling reason allows the court to “leave the status quo or go beyond what is ordinary.”

In the defense’s 11-page motion for downward departure, Irigonegaray listed 17 points in support of a departure, including that Theurer has accepted responsibility for the crime, that he makes good grades and is pursuing two-postgraduate degrees, that his scholarly research will benefit society, that he has school debt that would benefit society in being paid off and that he has Type 1 diabetes and uses an insulin pump.

On the latter, Irigonegaray cited another case involving a man who was granted a lesser sentence due to ill-health in which the Court of Appeals concluded his poor health was related to the offender’s amenability to incarceration and he was therefore eligible for downward departure.

Irigonegaray argued that non-statutory factors should be taken into consideration if they are fitting with the legislative purposes of the Sentencing Guidelines, which includes reducing prison overcrowding, and he wrote that the Court of Appeals noted in reference to the guidelines that “incarceration should be reserved for serious violent offenders who present a threat to public safety.”

As argued by Irigonegaray, Theurer’s conduct on that early morning was “aberrant” behavior for Theurer, who he said had the idea to give speeches on his experience.

Assistant County Attorney Wes Garrison, the lead prosecutor in the case, questioned Theurer’s acceptance of responsibility, arguing that he did not plead guilty, but no contest, and that he if he truly accepted responsibility, he would not request a lesser sentence.

But Garrison primarily argued that a departure based upon Irigonegaray’s arguments contradicts one of the main objectives set for the Sentencing Guidelines, which is that “sanctions should be uniform and not related to socioeconomic factors, race, or geographic location.”

Garrison wrote that such reasons as presented by the defense were socioeconomic arguments. “Whether the Defendant earned good grades or bad grades, has family or no family, or has plans for future or no plans should have little bearing on whether or not he should go to prison,” he wrote, noting that in following with the plea agreement—which a judge is not bound to—Theurer would have been released from prison prior to turning 28.

In siding with the defense, the judge noted that Theurer was an atypical defendant who could use his “God-given talents” to the betterment of society, both in educating on the dangers of drunk driving and his future career pursuits.

Neidenthal has indicated that she would like to be present for Theurer’s speeches to provide another voice on the matter.

During the appeals process, the appellate court will review briefs and oral arguments presented by both parties, before eventually issuing an opinion.

The process could take more than a year. Theurer will spend the summer in the Riley County Jail before he is released on probation and allowed to return to school in the fall.

Because of significant interest in the case, court officials said, a public transcript of the sentencing hearing will be available on The Mercury’s website at a later date.

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