ELYRIA — County Common Pleas Judge James Burge “exceeded his authority” when he cut Thomas Holmes’ prison sentence from 23 years to six, Assistant County Prosecutor Tony Cillo told a panel of judges from the 9th District Court of Appeals on Tuesday.

Cillo said Burge never had the power to revisit Holmes’ sentence imposed in 2001 by Burge’s predecessor, former Judge Lynett McGough, when he went forward with a hearing last May to resentence Holmes and inform him that he would be subject to parole once he left prison.

Holmes, now 50, was convicted of felonious assault and other charges stemming from a string of incidents in November 2000, when he struck his wife in the head with a hammer, held her at gunpoint and repeatedly punched her.

Jack Kilroy, Holmes’ attorney, argued that Burge was well within his rights to resentence Holmes any way he felt was appropriate. The judge, Kilroy said, was under no obligation to impose the same sentence as McGough.

“The judge is not required to rubber-stamp the decision and add post-release control,” Kilroy said.

Judges in Lorain County have been forced to resentence numerous inmates because of a higher court’s decision that required that inmates who could face probation after they are finished with their sentences be informed of the possibility at their sentencing hearings.

Most judges have simply handed down the same sentences and told the defendant about probation. Burge and other judges, however, have reduced sentences in a few cases because they felt the original judge had been too harsh.

Cillo said such changes in sentence open up the possibility for prosecutors and defense attorneys to reopen older cases and seek to have the sentences changed.

During Holmes’ resentencing hearing before Burge, Cillo objected to the judge’s decision to look at Holmes’ prison record and his refusal to consider other evidence from prosecutors, including testimony from McGough on why she gave Holmes the maximum sentence.

Kilroy said with resentencings, a defendant’s record in prison should be considered. Burge said Holmes’ clean record while serving his time influenced his decision to cut the sentence.

“If it’s good, take it into account,” Kilroy said. “If it’s bad, take it into account.”

Cillo had wanted McGough and county Coroner Paul Matus to testify at the resentencing, in part because Patty Holmes, the victim in the case, died in a Hamilton County house fire a few months after her husband was sent to prison.

A victims witness advocate was allowed to speak, but no one else for the state was permitted to testify.

Holmes has been free on bond while the state is fighting his new sentence. Kilroy said his client has remained sober, gotten a job and had no problems during the time he’s been free.

No date for a decision from the appeals court has been set.

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

---

Print this story
Report an inappropriate comment

---

In order to comment, you must agree to our user agreement and discussion guidelines.

Need help? Email Us.

---