POMEROY — The newly retained counsel for former probation and correction officer Larry Tucker has filed his sentencing recommendation in the case.
Larry Tucker, 56, of Pomeroy, was convicted in may on 24 of the 25 charges considered by the jury in the case against him.
William L. Burton, of Marietta, who is now representing Tucker, filed his sentencing memorandum on Friday in the case.
Burton argues for a three year sentence for Tucker, the minimum possible sentence on one first-degree felony kidnapping charge. Tucker was convicted on six counts of kidnapping, first-degree felonies; five counts of sexual battery, third-degree felonies; five counts of attempted sexual battery, fourth-degree felonies; four counts of gross sexual imposition, fourth-degree felonies; one count of attempted compelling prostitution, a fourth-degree felony; one count of soliciting, a third-degree misdemeanor; and one count of theft in office, a fifth-degree felony.
“If the Court follows the State’s recommendation, Mr. Tucker will receive 96 years in prison, and that is if he is found not guilty of the ‘sexually violent predator’ specification still pending before this Court,” stated Burton. If convicted of the specification, Tucker would receive a life sentence if following the state recommendation. “As Mr. Tucker is 56 years old, there is no meaningful difference between the two sentences, Mr. Tucker would die in prison.”
Burton added, “The Defense is concerned that, because of the nature of the offenses and the State’s argument, this Court might be swayed to deviate from the sentencing provisions of the Revised Code. It is important to note that what the people of Pomeroy think does not matter; nor do the personal opinions of the Court, the State, or the Defense. Mr. Tucker needs to be sentenced pursuant to the law. We have presented the law.”
In the filing, Burton addressed the remaining sexually violent predator specifications which are still to be determined by the court, as well as the issue of minimum versus maximum sentence and consecutive or concurrent sentences.
Regarding the remaining sex “sexually violent predator” specifications, Tucker’s attorney states that there are six factors to be considered as outlined in the Ohio Revised Code. Those factors are (1) A person has been convicted two or more times, in separate criminal actions, of a sexually oriented offense or a child-victim oriented offense. For the purposes of this division, convictions that result from or are connected with the same act or result from offenses committed at the same time are one conviction, and a conviction set aside pursuant to law is not a conviction; (2) The person has a documented history from childhood, into the juvenile development years, that exhibits sexually deviant behavior; (3) Available information or evidence suggests that the person chronically commits offenses with a sexual motivation; (4) The person has committed one or more offenses in which the person has tortured or engaged in ritualistic acts with one or more victims; (5) The person has committed one or more offenses in which one or more victims were physically harmed to the degree that the particular victim’s life was in jeopardy; (6) Any other relevant evidence.
“Mr. Tucker simply does not fit the definition of ‘sexually violent predator’ as defined by the Revised Code,” states Burton.
Burton goes on to state that in the state’s sentencing recommendation, it only has one sentence as to why Tucker should be convicted of the specification. That sentence states, “It has been shown that Defendant chronically commits offenses with a sexual motivation, and this is a sexually violent predator as set forth in the specification in R.C. 2941.124.”
He argues that the sentence is a “woefully inadequate simplification of the specification.” The state, argues Burton, only mentions the one factor which must be weighed and ignore the other five factors which he states “weigh heavily in Mr. Tucker’s favor of not being a violent predator.”
Burton continues, “The sexually violent predator specification is concerned only with whether “it is likely that the person will engage, in the future, in one or more sexually violent offenses.”
Regarding the sentence on each of the counts, Burton states that “Mr. Tucker should be sentenced to minimum sentences for all counts, as the sentencing factors weigh heavily in favor of Mr. Tucker’s conduct being less severe than normal and a remarkably low risk of reoffending.”
While the state represents that the factors are present tho make the crimes more serious, “this characterization is dangerously misleading” states Burton.
The factors to be considered regarding the seriousness of the offense are to be used to determine if “what Mr. Tucker did was worse than the average offender when the average offender commits the average version of each of Mr. Tucker’s crimes,” stated Burton.
The state, in their sentencing memorandum, argued that “the 11 victims for which Defendant was convicted of kidnapping and sexually assaulting suffered serious physical and psychological harm.”
“That assertion, by itself, is not probative of whether Mr. Tucker’s conduct was more serious than conduct normally constituting the offense. … Instead, the what must be ascertained is whether Mr. Tucker’s victims suffered serious physical and psychological harm that would indicate that Mr. Tucker’s conduct was more serious than conduct normally constituting kidnapping and sexual battery offenses,” argues Burton. “Mr. Tucker’s conduct as to the kidnapping convictions pales in comparison to other kidnapping cases, which are commonly more violent, contain more animus, and in which the victims are transported much further distances.”
“The sexual batteries for which Mr. Tucker was convicted were only criminal conduct because Mr. Tucker had supervisory authority over the victims as the time of the sexual conduct. This is a far cry from kidnapping with the object of raping the victim, and as such Mr. Tucker’s conduct cannot be said to be more serious than these commonplace kidnapping offenses,” stated Burton.
“Another of Mr. Tucker’s convictions that concerns conduct that falls drastically short of the average is Mr. Tucker’s theft in office conviction,” stated Burton. He states that Tucker is convicted of stealing the equivalent of “some $70 dollars” and that the conduct is “laughable” compared to the average theft in office conviction in Ohio. He cites two cases, one with theft of over $3,000 and one with $313,976.91.
Burton goes on to state that Tucker has no prior criminal history, that he led a law-abiding life prior to the current offenses, and that the circumstances under which the crimes occurred are not likely to happen again.
As a convicted felon, Burton states that Tucker will never hold positions like probation officer or corrections officer again, making it unlikely he could commit the offenses again, as the convictions relate to his work in those roles.
Burton does not address the fifth factor to be considered which is that the defendant shows genuine remorse.
“The defense asks that this Court sentence Mr. Tucker to the minimum allowed by law for each of his convictions,” states Burton. “It offends the defense that the State asked for maximum consecutive sentences across all Mr. Tucker’s convictions, as Mr. Tucker’s conduct for each of his offenses was extremely benign compared to many other respective offenses in this state.”
“Were this Court to sentence Mr. Tucker to concurrent maximum sentences, Mr. Tucker would receive a prison sentence of 96 years. 96 years is grossly disproportionate to every one of Mr. Tucker’s offenses, even taken in aggregate, and offends even the most draconian notions of retributive punishment theory,” states Burton.
He also argues that consecutive sentences are not appropriate in this case as the situation and conduct do not satisfy the factors required for consecutive sentences.
“Consecutive sentences are not required to protect the public, as the public is in no danger of Mr. Tucker reoffending. Consecutive sentences are not required to punish Mr. Tucker, as the kidnapping charges alone are more than sufficient to punish Mr. Tucker if all his sentences are served concurrently. Moreover, consecutive sentences would be grossly disproportionate to Mr. Tucker’s conduct as well as grossly disproportionate to Mr. Tucker’s risk to the public, as Mr. Tucker poses no further risk to the public after release,” stated Burton regarding consecutive sentences.
Burton stated, “The State claims that Mr. Tucker is a dangerous offender that will reoffend upon his release. What the State does not mention, however, is that it offered Mr. Tucker four years and eleven months if he would plead guilty before trial. Four years and eleven months is how serious the State thought Mr. Tucker’s conduct was.”
“After Mr. Tucker declined, and insisted on going to trial, the State suddenly claims a 96-year sentence is appropriate for him. This direct evidence that the State is indulging in a personal vendetta against Mr. Tucker’s conduct or sentencing norms, but is a ridiculous, medieval boilerplate sentencing recommendation that is completely detached from reality,” concluded Burton.
A sentencing date in the case has not been set.
Sarah Hawley is the managing editor of The Daily Sentinel.