A judge was wrong to use promotional drug company material when deciding to impose the maximum sentence against the West-Liberty Salem High School shooter, a defense attorney argued.
Ely Serna’s attorney, Stephen Hardwick, made the argument Tuesday morning in front of the Ohio Second District Court of Appeals as he seeks to shorten the sentence imposed by Champaign County Common Pleas Judge Nicholas Selvaggio.
“This was contrary to law,” Hardwick said during the hearing at the Champaign County Courthouse.
Serna was convicted of bringing a shotgun to school and opening fire, shooting then-West Liberty-Salem student Logan Cole twice, leaving the teen badly injured. Serna also shot at a teacher and into classrooms during the incident.
He was charged with a number of felonies but pleaded guilty to attempted murder, felonious assault and inducing panic just days before a trial was set to begin. Currently, Serna is serving a sentence of 23½ years in the case. He’s served a little more than 1½ years in jail so far.
Serna did not appear in court on Tuesday. Instead, a group of family members sat behind Hardwick.
Champaign County Prosecutor Kevin Talebi argued to the court in favor of the sentence, saying Selvaggio simply used the material to discuss the drug Vyvanse with the defense’s expert.
“He used the information as a basic building block to question the expert witness,” Talebi said.
The defense said the witness told the court that he was not a psychiatrist and therefore couldn’t talk about the drug properly. The state says while he did say that, there were times in the testimony he opined about what he’s seen in children that take the drug.
Also part of the hearing was whether Selvaggio should have taken Serna’s age more into account before sentencing him the maximum sentence. Hardwick says Ohio law calls for a judge to consider the age of the defendant, while Talebi said Selvaggio did talk about Serna’s age during the sentencing hearing and that Ohio law doesn’t require a judge to sentence a suspect soley based on age.
The hearings were conducted in front of Judge Jeffery Welbaum, Judge Michael Hall and Judge Michael Tucker. The three questioned each attorney about their stance. At one point, the defense was asked if Selvaggio didn’t mention the drug, would the sentence still have been legally imposed.
Hardwick said he believes it would be, but the court should consider that the judge did use the drug’s promotional material and therefore should overturn the sentence.
The state has argued in court documents that Serna got a fair hearing and a fair sentence considering the seriousness of the crime.
“With regard to more serious factors, the trial court found that the victims closest to the shooting incident includes 398 middle school and high school-aged children, 168 of whom felt compelled to break and exit through classroom windows to nearby parking lots, ball fields, and muddy farm fields to escape harm’s way,” the response says. “In a separately attached wing of the school, elementary-aged children were hiding in classrooms behind barricaded doors arming themselves with staplers, scissors, and sharpened pencils while shielding their vital organs with heavy books…”
It is unclear when a ruling might be issued by the second district court.