Champaign County Prosecutor Kevin Talebi declined to comment on the appeal when reached Tuesday.
However, in a brief filed in Champaign County Common Pleas Court, Serna’s attorneys say Selvaggio erred while sentencing Serna.
“The maximum sentence of 23½ years communicates that there was nothing in the record — not Ely’s remorse; not Ely’s serious but treatable mental health diagnosis; and not Ely’s moderate-to-low risk scores — to mitigate the harshest punishment that was available under the law,” the filing states.
“The argument is not that Ely should escape punishment for his actions,” the court document states. “Rather, the law recognizes the differences between adults and children who commit serious offenses and those difference must be considered when determining culpability and punishment.”
The attorneys argue the judge sentenced Serna contrary to law because he imposed the maximum sentence after researching the causes and effects of Vyvanse, a drug used to treat attention deficit hyperactivity disorder (ADHD), and that the judge didn’t take Serna’s age into account during sentencing. The defense team also argued that Serna was depressed at the time of the shooting and that he showed remorse for his actions.
The court document says Selvaggio visited the drug’s website in an attempt to better understand its effects and relied on information found on the site to come to the conclusion that Serna’s psychotic state was the result of him voluntarily taking the medication.
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“The trial court’s finding based on its review of promotional material found on the internet is different than the experts’ views based on the education, training and practice,” the court document states.
“No expert found a causal link between Vyvanse and Ely’s depression.”
The attorneys argue in the court document filed Jan. 31 that nothing permits a trial court to base its decision on its own internet research.
“The internet is a source of a wealth of information, but much of it is unreliable,” the court document states. “Here, the trial court improperly relied on a drug maker’s promotional materials instead of seeking additional expert assistance. The sentence the trial court imposed on Ely is contrary to law because the trial court based a key portion of the decision on promotional material it found online. This court should vacate his sentence and remand this case for a new sentencing hearing.”
The attorney also argues that maximum sentences should be reserved for the worst form of an offense, and a judge should take into account the person’s age when sentencing them.
“The trial court specifically found that the seriousness of the offense was exacerbated by the age of the victims — they were Ely’s peers, children in the middle and high school when the offense occurred,” the court document states. “But, the trial court did not specifically consider Ely’s age-attendant characteristics or youthfulness as a mitigating factor relevant to sentencing.”