Gaughan: No early release for Smith

By MICHAEL D. McELWAIN, For The Weirton Daily Times
NEW CUMBERLAND — Mark Smith will not get an early release from jail after a decision by Chief Judge Martin Gaughan of the First Judicial Circuit.

Smith returned to Hancock County on April 28 for the first time since being sentenced to one year in jail for misdemeanor sexual abuse in the second degree.

Smith, 54, of Chester, was originally accused of committing three felony counts on Dec. 13, 2006, after he, while on duty as a deputy sheriff, pulled the female accuser’s vehicle over on a traffic stop along state Route 2, just south of Newell. Smith took the female from that location to another where he committed a sex act against the accuser’s will.

Smith was in court on April 28 seeking a reduction of his sentence under what is called a “Rule 35.”

Smith remained in Northern Regional Jail when Gaughan issued his ruling Tuesday.

Gaughan’s order reads, in part, “ ... the court finds that as a result of the seriousness of this crime, and to uphold the integrity of the law and the court, this court has no choice but to deny the defendant’s motion for a reduction of sentence. Since the defendant’s sentencing date, the only demonstrated change in circumstance is the impact that incarceration has had on the defendant and his family, which in this particular case does not warrant a sufficient change in circumstance to modify the defendant’s sentence.”

The judge went on to say that “ ... the nature of the crime and the circumstances under which it occurred demands a measure of retribution and it would be inappropriate for the court to reduce the defendant’s sentence.”

During the April 28 hearing, Smith’s attorney, Joe Ludovici, said his client had to endure a lot since the incident, including the loss of his job and main source of income, public humiliation, the media coverage, information leaks and the hardship placed on his family.

Gaughan acknowledged that in his order and also said the court “ ... never received so many well-written letters, in support of a motion sentence, from individuals who are personally known and respected by the court.”

The judge said he carefully considered the quality and quantity of support shown, Smith’s lack of any previous criminal record and the contribution he made to the community in the past as well as his “strong work ethic and close family ties.” Gaughan said in his order that the court believes there is no risk of Smith to re-offend, that rehabilitation is not necessary in this case and that Smith is no longer a danger to the community.

Specific events that occurred in the commission of the crime were given an overview by Gaughan and, in the end, he said, “The circumstances of this crime undermines public confidence in law enforcement, and a reduction of the ‘maximum sentence,’ where the defendant will serve approximately seven months in jail, would destroy the public’s confidence in the court.”

Smith has now served 83 days in jail.



(McElwain can be contacted at mmcelwain@reviewonline.com)