Endorsement(s) from hell

A Moore County judge abused his discretion when he counteracted state sentencing rules and cut in half the sentence of a man convicted of raping a child, the N.C. Count of Appeals ruled last week. The ruling stems from a December 2013 case involving Resident Superior Court Judge James M. Webb. He rejected a plea agreement and reduced Zachary David Thomsen’s 25-year minimum sentence to 12 years, reasoning that individuals convicted of second-degree murder received lesser sentences than what Thomsen faced.

Last Tuesday, a divided three-judge panel vacated Webb’s order and sent the case back for a new sentencing hearing after ruling that the mandatory minimum sentence Thomsen received on convictions of first-degree rape and first-degree sexual offense is appropriate given the serious nature of the crimes.

“We are unpersuaded by the trial court’s comparison of the sentence imposed in this case with the sentence imposed in other, unrelated second-degree murder cases,” Judge Robert N. Hunter Jr. wrote in the appeals court’s opinion.

Webb declined comment on the case, writing in an email that “further appeals and post trial motions are possible and it would be inappropriate for me to comment pursuant to the N.C. Judicial Code of Conduct.”

Thomsen, of Whispering Pines, admitted to raping an 8-year-old girl left in his care in May 2012, according to court records. In June 2013, Thomsen, who was 18 at the time of his indictment, pled guilty to first-degree rape and first-degree sexual offense. The sentences were consolidated into one active sentence of 25 years minimum to 31 years maximum.

As part of the agreement, the state dropped four lesser charges.

Webb objected to the prescribed sentence when Thomsen entered his plea, Hunter wrote. Webb announced his belief that the proposed 300-month sentence was “in the aggravated range,” and identified the 300-month (25 year) sentence as “the most the defendant could receive” and refused to accept the agreed-upon sentence. Both the prosecutor and the defense attorney disagreed with Webb, but the judge delayed sentencing to study state guidelines.

Structured sentencing tables provide presumptive ranges and allow for more lenient sentences when courts find mitigating factors. Likewise, harsher sentences are allowed when aggravating factors are found to exist.

Webb ordered a a pre-sentence study of Thomsen by the Department of Corrections to gauge his mental, emotional and physical health to see whether he was a violent sexual predator.

In October 2013, when the case came back to his courtroom, Webb questioned the victim’s mother about a prior incident when the 13-year-old son of the girl’s caregiver allegedly touched the then-3-year-old girl inappropriately on the outside of her clothing.

“(The woman) responded adversely to this questioning, asking: “Why [do] we have to bring this up?” and “Why do we have to talk about this, sir? and “Why is this important, sir?” Hunter wrote in a summary of the case.

Webb then questioned the pediatrician who examined the girl after the rape on May 31, 2012. The doctor testified she examined the girl three weeks after the incident and stated, “(t)here was nothing remarkable” about the girl’s exam, which she testified “is not unusual in cases of non-acute sexual abuse,” Hunter wrote in his summary.

Non-acute sexual abuse is that which occurs more than 96 hours before the exam.

The doctor testified that “children can have unremarkable exams, despite having significant penetration or repeated episodes of trauma.”

On Dec. 13, 2013, Webb listed several mitigating factors in Thomsen’s case, including that the victim’s parents “allowed the minor child to be in the custody of the teenaged defendant without responsible adult supervision.”

The Court of Appeals rejected that finding because Thomsen was 18 and a legal adult at the time of the sexual abuse.

“For the reasons stated above, this finding is manifestly unsupported by reason,” Hunter wrote.

Webb also cited the absence of physical trauma to the victim’s genitalia at the time of her examination and that Thomsen was not designated a sexually violent predator.

After announcing his findings, Webb accepted the sentence agreed upon in the plea arrangement and then set it aside, entering a “sua sponte,” or self-initiated, order for appropriate relief. Webb ordered Thomson to prison for between 144 and 233 months.

In the order, Webb’s findings also placed responsibility on the victim’s parents for allowing her to be “in the custody of the teenaged defendant without responsible adult supervision” after the incident five years prior involving the caretaker’s son.

Webb wrote it was “unconsciousable [sic]” that Thomsen be sentenced to 25 to 35 years in prison given the facts of the case.

On appeal, Hunter wrote that Webb’s finding of a lack of adult supervision constituted “a manifest abuse of discretion.”

Webb determined the original sentence constituted cruel and unusual punishment in violation of the Eighth Amendment, an argument the Court of Appeals rejected.

The state and the defendant had agreed to the 300-month sentence, and “a 300-month sentence is not grossly disproportionate to the two crimes to which Defendant pled guilty. Furthermore, Defendant’s 300-month sentence in this case is less than or equal to the sentences of many other offenders of the same crime in this jurisdiction,” Hunter wrote.

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