Saturday, October 31, 2009

Nicholas Sheley Sentenced To Seven Years For Jailhouse Attack

Nicholas Sheley is a 30 year old Sterling, IL man accused of a June 2008 two-state killing spree that left eight people dead. He will now spend some of his time awaiting trials (to be held in several locations) for the alleged killing spree in the Illinois Department of Corrections.

On Friday, October 30, Knox County Circuit Court Judge Stephen Mathers sentenced Sheley to seven years in prison for a September conviction on charges resulting from an incident at the Knox County Jail in April. Sheley was convicted on 3 counts of Aggravated Assault, 1 count of Aggravated Battery and 1 count of Criminal Damage to Government Property. Sheley allegedly broke apart a metal chair and threw the legs at peace and correctional officers causing them injury. He also allegedly punched one of them.

Today is a typical Midwestern Autumn day, the temperature is 50ish, a light breeze and there is intermittent drizzle. Not the most pleasant of weather, but as I pull up to the courthouse I notice how lovely the scenery around the courthouse is. Absolutely awesome! Adjacent to the courthouse is Standish Park Arboretum, a three acre park with almost 200 trees and shrubs. It’s a technicolor of crimson and gold everywhere. I’ll try to remember to bring my camera to the hearing scheduled next week….although by then the ground my be the only technicolor left. LOL

I had in my notes from the last day of trial that this hearing would start at 9am, but when I get to the courthouse steps a few minutes before 9, I see Ronald Randall’s family just getting out of their cars and I know right then the hearing must start later. They are almost always the first ones in the courtroom. I have said this before, they are here absolutely to represent their brother, father, uncle (depending who is here, always his sisters) in a quiet and consistent way. Two of Ronald’s friends are here too….but I won’t give them kudos for being timely….I told them it started at 9 instead of 9:30. LOL! Sorry guys. Mr. Randall is surely proud of you all, and your devotion reflects the kind of man he was.

Ok down to business. ;) Here is my in the courtroom report:

Today there are a few more people than usual. Looks like 5 members of the accredited press, although I see 2 other people with notebooks I’m not familiar with. Three attorneys are here from the Attorney General’s office who are assisting in Knox and Whiteside County in prosecuting the homicide charges. There was a return of subpoena hearing scheduled for after the sentencing this morning, related to the murder trial, but it was changed to November 4th.

There are 2 men in the courtroom when I come in. I’m told later one is a minister from a local mission, surely they are here in support of NS. This is only the second time I have seen anyone in court besides lawyers in support of Sheley. The other was a young girl he met when they both were incarcerated at the jail. Well…make that the third, his ex-wife came to let him know she holds him accountable for the effect his actions have on their kids. I’ve heard that Sheley’s family doesn’t attend out of respect for the families of the victims. I suppose living over an hour away affects their ability to attend as well. I do know his brother and wife are in jail too, but I’ll save those details for another entry.

Sheriff David Clague takes a seat behind me and a few moments later Captain Caslin (Jail Administrator) takes his seat on the other side of the courtroom. Nicholas Sheley (NS) is brought in at 9:25 accompanied by several more sheriff officers. He is seated right away so I didn’t get a real good look at him. His Public Defender Jim Harrell (JH) is blocking my view right now. At the prosecution table is State’s Attorney John Pepmeyer (JP) and Assistant State’s Attorney Matt Kwacala (MK).

At 9:30 sharp, Ninth Circuit Chief Judge Stephen Mathers takes the bench and the hearing is under way. Judge Mathers says that the purpose of this hearing is to review the Pre-Sentence Report and the aggravating and mitigating factors related to the charges that Nicholas Sheley (NS) was convicted of on September 23 before he imposes a sentence.
Please note that things get moving pretty fast at this point so I may have missed some things that were said. I will use the initials indicated above to show who is speaking from here on out.

JH- Stands at the defense table and addresses the judge. He tells the court he would like to make a motion for a new trial saying that Nicholas Sheley has spent a lot of time in this courtroom and it is incumbent on his counsel to raise all issues for appeal and the record.

Mr. Sheley has several issues he would want the court to consider….he asserts that the self-defense alibi was not presented at trial. (Harrell makes note another time that is Sheley’s assertion , not his)

JH continues as counsel he too has several issues that were heard before the jury.
1)JH says his motion to extend shouldn‘t have been denied. He says it’s not word for word but pages 5 and 6 contain a Colloquy to Judge Morrison. (sorry I don’t have a copy of the motion for a new trial and my notes become a bit vague on the rest of this argument) Harrell continues he wants to re-raise that issue, would find the pre-trial order not approved by counsel then JH cites case law, people v. ?, extension of deadline was of significance.
The next argument has to do with a 2-part question that came from the jury. They wanted to know what they do if they can’t reach a unanimous verdict on count two ? Does that mean all of the counts are not valid? Today it was referred to as the prim or crim instruction, but when I look back at my notes from the trial it was referred to as the proposition instruction. My understanding of the instruction is :
The crime charged in each count of the indictment is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it. The Defendant may be found guilty or not guilty of any or all of the offenses charged or included. Your finding as to each crime charged must be stated in your verdict.
2) JH says there was a question from the jury regarding the “prim or crim” instruction in regards to count 2 . JH says he is concerned that the jury thought the instruction meant they had to be unanimous on not “each” but “all” counts. The reason he feels this way is because the jury was out for nearly 4 hours deliberating and a short time after they were told to reread the “prim” instruction a verdict was rendered on all counts.
3) JH entered a motion during the trial that NS was not competent to testify and not incriminate himself citing People v. Lego based on an evaluation that had been done months before in the ‘08 case.. He adds that NS asked for a new evaluation in his pro se motion. (motion to represent himself)
4) JH complained that when Officer Underwood was not present at the trial, the defense was surprised. Underwood wasn’t called by the state after the jury was told he would be. When the defense requested a continuance so they could subpoena Officer Underwood it was denied and by that time it was 4:30 and the circuit office was closed so they weren’t able to get a subpoena. Underwood had inconsistent statements in the discovery and the defense would have crossed on that.
5) JH requested and was denied individual voir dire per Supreme Court rule 431B. His concern was if one of
the jurors said they had heard of Sheley 6 months before he was limited from tainting the jury by asking about crimes in another county, adding he had to exhaust all of preemptory challenges to get rid of those prospective jurors. He also said that he requested funding for an additional survey that pertained to this case and was denied so only survey was the survey related to the homicide case.
Before the trial JH said he entered a motion to dismiss the grand jury indictment because of prejudice against his client adding the case he cited was related to a race issue but if NS was labeled as charged with a homicide that was prejudicial. There was no indication the grand jury were questioned on knowledge of the murder accusation. NS was denied the voir dire process when the Grand Jury was selected
6) JH mentioned he feels the grand jury was not impartial and were not advised that they could call witnesses. The grand jury was asked to review reports, but not told they could subpoena. He said the grand jury has a right to subpoena and indicates he didn’t see anywhere in the transcript they asked to do so. He said the transcript showed the jury foreman asked, “Isn’t Johnson or Cordle here to question?”
7) JH said in paragraph 7 he asked for funding for an updated survey so he would have an affidavit to submit
with a change of venue motion. Then JH says he asked for dismissal of Juror Rogers for cause and was denied adding the panel was tainted by her comments. (This really seems to pertain more to the issue in raised in #5)
8) JH said another issue was he was not allowed to ask jurors their perception of battery. He told the court no one testified they actually saw someone hit during the incident.
(I missed part of what he said here because I flipped back in my notes to see how many did testify to that) The next thing my notes say is reserve the right to come back.???
NS is talking to Harrell . JH says NS would like the record for a new trial to include that because his attorney was appointed he was not judged fairly and feels handicapped by this.
JH summed up his request for a new trial by saying that because this was just a 3-day trial he was impressed the jury took the time that they did but feels the time may indicate they had some reasonable doubt.
JM asks the state for their response.
MK goes to the podium next to the prosecution table and addresses the court on the issues raised by the defense in the order the defense introduced them.
1) MK says the Discovery Order was set at the preliminary hearing and there was a pre-trial hearing in July. There were no issues raised at anytime until the eve of the trial so there is no merit.
2) MK- About the prim instruction and the terms of the defense objection all he said was not yet. The defense is assuming a conclusion made by the jury. The instructions are clear.
3) MK-Motion to prevent the defendant from testifying. This court ruled before the trial NS had a right to
testify. The point is moot because NS exercised his right not to testify.
4) MK- Officer Underwood was listed on the state’s witness list and the state didn’t subpoena him. The defense has the same subpoena power if Officer Underwood was so important to their case.
5) MK- Voir dire ( This is all my notes say on this point??? Sorry)
6) MK- Grand Jury Indictment, the record is clear at the beginning jurors were advised of rights to subpoena.
7) MK-Funding for new survey for change of venue on the new case….all filed on the eve of the trial and were heard.
8) MK- On page 15 the jury was instructed as to what Aggravated Battery is. This issue has no merit.
( I missed it when the defense raised this last issue, but the state’s response is self-explanatory. Officer Van Achen is a Galesburg Police Officer called in the trial to establish the chain of custody of the evidence.)
9) Officer Van Achen. This is just not true. His name was provided personally by me to the defense one week before the trial.
MK asks the court that the motion for a new trial be denied.
JM asks the defense if the have a response to the state.
JH says the state indicated in the preliminary the issue was addressed. In the prim instruction there is no need for the attorney to say I object not yet will suffice. NS is feeding JH information he wants added…..the clerks office was closed. (Sorry this is so cryptic, it’s my notes)
JM- Had opportunity to review the motion and a few more on Tuesday. First, not conceding the arguments are valid but the point is are the points not valid. (This is what my notes say sorry, sometimes this judge seems to think out loud in incomplete sentences) Denying the motion for a new trial.
JM asks JH if he has reviewed the pre-sentence investigation with NS. At this point JM jumps up and leaves the courtroom to get his copy from chambers, it takes just a second. I notice Sheley scoots in his chair and looks at the clock. It‘s 10:08.
JH says he doesn’t see any issues, adding Sheley advised him he reviewed the report at the jail and had no changes. JM asks the state if they have anything, they said no. Judge Mathers then asks a woman who has been sitting against the rail in the well,” Secretary of the Court do you have anything to bring to attention.” She says no.
The sentencing phase of the hearing begins. MK calls his first witness, Scott Cordle (SC). John Pepmeyer goes out in the hall and retrieves the witness. Cordle tells the court he has been a sergeant with the Knox County Sheriff’s office for 2.5 years and prior to that worked as a corrections officer at the Knox County jail for 2.5 years.
MK- Were you working on April 17? SC-yes
MK- Were you in the A-max pod that day? SC- yes
MK Were you in the pod during the incident? SC- yes
MK-Immediately after the incident were you in the pod? SC- yes, clearing out NS’s room.
MK- After the incident did you hear NS make statements? Who else was in the pod at that time? SC- Yes, Captain Caslin, Hanlon and McGruder were in there too but he just made a general statement not to anyone specific.
MK- describe the statements. SC- NS said, “I will kill one of you guys before I leave this fucking county.
MK- Did you include that in your report? SC- yes
MK- When did you make the report? SC- A few hours after the incident.
MK- So it was fresh in your mind? SC-yes
The state was finished.
JH- How much time passed after the incident when the statement was made? SC- 5 minutes
JH- Was he tased? Did his body receive electricity/shocks? He was taken down with the shield and 6 officers? SC- yes
JH-Was he laying down? SC-Yes, laying down and restrained.
JH- Laying down, not able to get up, move or walk? SC- Correct.
Defense has no more questions.
MK- Were the statements made as he was being restrained or after? SC- After.
JM- Does the state have any further evidence? MK- No
JM- Asks JH if he has any evidence? JH- No, just cover any evidence provided.
JM- Let’s take a 10 minute break. I look at the clock and it is 10:18.
Sheley is brought back in at 10:25 and court reconvenes at 10:30.
JM- Arguments from the state?
MK- NS is eligible for an extended term based on a prior felony conviction in the last 10 years. In 2000 he was convicted of aggravated robbery and was sentenced to 6 years. The law says with this aggravator the defendant can be sentenced to 14 years. His criminal history shows he is a very violent man back into his juvenile record. MK lists a variety of convictions in 95, 98, 99, 2000, and 2005 and says his record shows a violent pattern of behavior.
MK then recited from a list of aggravators, all I was able to get down was the first and last he read….1. Defendant caused or threatened seniors harm. 7. Sentence needed to deter others. Although he recited numbers 1 and 7 he just cited 4 aggravators from the list he was reading.
MK begins a summary of his argument. The state believes none in mitigation apply. You heard the evidence judge, this was a cold calculated planned attack. He covered the camera and the window with paper, ripped the chair apart, refused to respond to all the officers, he was lying in wait. I submit Mr. Sheley wanted to hurt someone, the second they opened that door he started throwing chair legs. His plan of action was to severely hurt at least one of the officers. Furthermore, he has shown no remorse, the threats he made after suggests further acts. The fact is the defendant is eligible for an extended term. We ask for the high range on each count and want to remind the court he isn’t eligible for probation.
Matt Kwacala sits down and Jim Harrell stands to take his turn.
JH-We can’t forget the court is rendering a just sentence for the act he was convicted of. Michael Atterberry from the Attorney General’s office entered an appearance in this case but the counts charged in the murder case should not be considered. When they say he wanted to hurt someone, don’t consider what is pending or reported in the media. There are facts of mitigation. Hardship on Mr. Sheley’s children is a mitigating factor. His children are very important. Before being incarcerated here Mr. Sheley was renting a home with his wife and children and was employed in a full-time construction job. Remember, we are not addressing incarceration for murder.
JH- The state says Mr. Sheley and Harrell knew about officer Underwood, but we weren’t notified of the
extended term in the indictment. State says NS wants to hurt someone yet Cordle testified NS said he was sorry. Sorry means didn’t mean to do it. His apology to Cordle was admitted during the trial as an admission. This was one act one crime and any sentence should be concurrent.
JH- Need to say about facts. We asked to renew the directed verdict….none of the officers were treated at a hospital or received medical treatment. The state says he is violent because he has had a weapon, a lot of people have weapons. They said he resisted officers, that’s not aggravated battery, just not obeying orders. There were only a few domestic battery charges and an unlawful restraint that was a long time ago. Yes, there are dumb convictions, like no seatbelt. I can spin like the state but you cannot sentence based on pending murder charges. We contend the minimum sentence is appropriate. Counts 1-3 are 3 years, count 4 is 365 days in county and count 5 is 1 year. We ask they all be concurrent.
JM- Does the state have rebuttal?
MK- No notice of extended term? The term is statutory as long as we’re not trying to enhance the felonies. We are asking based on the class 2 felonies. The state has never mentioned any other case.
I notice out of the corner of my eye Sheley is flexing his left hand.
JM tells Sheley he can address the court if he wishes. NS says loud and clear, I do not.
JM advises Sheley about his rights of appeal. He says NS has the right to use the clerk to prepare and file the request. He can have a transcript at no cost, furnished because he has been found to be indigent. Counsel appointed in appellate rights must be filed within 30 days. If you wish to seek to challenge the sentence you must file the motion within 30 days and include any claims of error of sentence. Any issue or claim not raised in the motion will not be considered even by the appellate court.
JM -cites People v. Morton, convictions based on the same physical act or more than 1 act in the same incident or transaction only a concurrent sentence can be imposed. He then addresses Statutory aggravating and mitigating factors. Sheley did not cause but intended to cause serious harm Finds the defendant does have a history. Sentence necessary to deter others.
JM- He will not consider any pending cases and will preclude juvenile proceedings too. Says he wants to note specifically he will only consider cases after July 1, 1997. Many of the cases that resulted in convictions were resisting arrest, he doesn’t know if violence occurred but has a problem with authority.
JM agrees with the state that this matter was pre-meditated, he laid in ambush, not to escape but to cause harm. His intent was to wreck havoc, create mayhem.
Judge Mathers then imposes the sentence.
Count 5- 1 year
Count 4- 364 days normally in county jail but since concurrent will be served in DOC.
Counts1-3 is 7 years
Kwacala reminds the court counts 1-3 include 2 year supervision. Harrell asks if sentence eligible for 50%.
Judge Mathers said that is decided by the Department of Corrections. And court is recessed.
At a custody hearing in May, Knox County Circuit Court Judge Dwayne Morrison told Sheley if he was convicted of all or more than one of these 5 charges the penalty would not exceed the maximum of the 2 most serious which would be 14 years concurrent. He also told Sheley because these alleged crimes were committed while being held in a pretrial phase on other charges the sentences would be consecutive, whichever charges he is convicted of first would be served consecutive to the other offenses.
Sheley has been held in Knox County since July 3, 2008 on a $10 million dollar bond awaiting trial on a 17 count indictment related to the death of Ronald Randall 65, Galesburg. Ten of the counts in the indictment are first-degree murder. In Illinois the penalty for first-degree murder without aggravators is 20 to 60 years in prison. Sheley faces the natural life in prison or the death penalty if convicted of killing Randall and aggravators are present.
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