MOUNT VERNON – Fifth District appellate court candidate Michael McHaney imposed an excessive sentence as circuit judge after calling drug addicts selfish, Fifth District judges found on May 20.
They vacated a sentence of 11 years for Nicholas McCarty, and remanded the case to Clay County for sentencing by a different judge.
Justice Randy Moore wrote that affirmative evidence showed McHaney erred when he found zero factors in mitigation.
Moore wrote that he and justices Mark Boie and John Barberis shared McCarty’s concerns about some of McHaney’s comments.
Moore wrote that the comments added nothing of value to the proceedings.
McCarty pleaded guilty in 2020, to felony charges that he possessed a lost credit card and less than five grams of methamphetamine.
The plea also resolved a felony charge of violating a protection order that involved slashing tires of his children’s mother.
His plea agreement provided that he would serve no time except in problem solving court, a diversion program.
Circuit Judge Ericka Sanders, who oversees the special court in Effingham County, granted probation.
She warned McCarty he was eligible for extension of his sentence and for consecutive sentences.
After ten weeks the state moved to revoke probation, alleging 25 violations of rules and requesting his discharge from problem solving court.
At a hearing, McCarty admitted to violations but his counsel Mark Tungate of Flora claimed he deserved a second chance on probation.
Probation officer Tera Conklin testified for the state that she imposed progressive punishment and corrections, but they didn’t make a positive difference.
On cross examination she agreed that McCarty complied at first and that removal of his children from their mother’s custody had a very negative effect.
She agreed that relapse wouldn’t be unusual under such circumstances.
Social worker Kayla Althoff agreed that it could cause relapse.
McCarty testified that losing his ability to see his children devastated him.
He said addicts raised him and he wanted his children to have a better life.
He said problem solving court was his best opportunity to get and stay sober.
Sanders discharged him and set a sentencing hearing in 2011.
A probation report stated that the mother of his children admitted she lived with him despite having a protection order against him.
It stated that she said she obtained the order after the Department of Children and Family Services told her she wouldn’t get her children back as long as he was around.
She said she didn’t want to pursue the charge of violating the order.
On the date of the hearing McHaney presided instead of Sanders.
McCarty claimed prejudice and moved for substitution, and McHaney denied it.
McCarty told McHaney he had an addiction and needed help.
He asked for any sentence other than prison.
He said he wanted to unlearn his way of life.
He said he doubted he could get helpful treatment from state corrections.
Tungate said McCarty didn’t threaten anyone or cause physical harm to anyone.
He recommended residential treatment.
The state asked for eight years.
McHaney said he found zero factors in mitigation and probation would be an absolute joke.
He said discharge wasn’t due to relapse and McCarty didn’t even try.
He said he consistently finds addicts “among the most selfish people on earth.”
He said resources devoted to McCarty “were given the middle finger.”
He said he could impose 16 years, “which he certainly deserves,” and imposed 11.
On appeal, state appellate defender Christopher Sielaff claimed McHaney sentenced McCarty for actions while on probation and not for the original charges.
He claimed McHaney apparently based the sentence on personal feelings.
Fifth District judges found a judge must balance retribution and rehabilitation through consideration of all factors in aggravation and mitigation.
They found McHaney didn’t adequately consider the information available to him.
Moore found that an absence of information about actual, threatened, or contemplated physical harm led to a reasonable inference that no harm occurred.
He found McHaney’s comments “easily could be construed in the prejudicial manner suggested by the defendant.”
State appellate prosecutor Michael Lennix represented the state.
McHaney won the Republican primary in June.
Fifth District voters will choose between him and Democrat Brian Roberts of Carbondale in the general election.