A man sentenced for kidnapping and raping his ex-wife in 2009 is asking the State Court of Appeals to shorten that sentence.
John Herring's attorney, Kevin Fitzgerald, and Assistant Attorney at the Office of Special Prosecutions and Appeals, Eric Ringsmuth, presented arguments Wednesday afternoon to a 3-judge panel.
Fitzgerald claims Judge Michael Wolverton should have referred the case to a 3-judge panel, saying Herring meets the 2 prongs required for a decision to appeal the sentence that Judge Wolverton made in December 2011. Those two factors, high prospects for rehabilitation and whether or not the sentence was manifestly unjust, were argued before the court.
Fitzgerald says the 21 year sentence was excessive, claiming Herring does not fit the category for the presumptive sentencing range because this was a one-time event.
“He doesn’t present character traits of a serial sex offender or criminal in that his issues were highly specific and personal to [his ex-wife],” said Fitzgerald.
But the State claims this was not the first time Herring assaulted a domestic partner, and added to a statement Judge Wolverton made at the sentencing hearing last December that although Wolverton found there’s significant evidence this situation won’t happen again, he doesn’t understand why the event occurred.
“He uses the phrase, the situation would not occur. The situation with his current ex-wife. That's distinguished between the situation where he previously had domestic violence with his first ex-wife and he doesn’t make any findings about the condition of future domestic partners,” said Ringsmuth.
His ex-wife spoke out at the sentencing hearing in 2011 and told the court that "Rape is a crime of shame and domestic violence is a crime of silence, I am not ashamed and I will not be silent."
A spokesperson with Abused Women’s Aid in Crisis, or AWAIC, says, like in this case, the most vulnerable time is when the victim tries to leave a relationship. AWAIC advises women to call the hotline if they feel they are in trouble at 272-0100.
The defense attorney told Channel 2 News it could take an average of 6-to-9 months for the Court of Appeals to come to a decision.
