ELYRIA — A convicted killer whose death sentence was overturned by a county judge who found him mentally retarded has appealed the judge’s decision to resentence him to life in prison without parole.

By filing the appeal, Raymond Smith, convicted in the 1994 murder of police informant Ronald Lally, isn’t risking Rothgery’s finding that he’s retarded, a decision that means the state can’t execute him, said his attorney Alan Rossman.

Rossman said Rothgery needs to set a sentencing hearing and decide if Smith should receive a sentence of 20 years to life or 30 years to life.

Those are the only potential sentences that Smith could receive, he said, because life without parole wasn’t a possible sentence in 1994.

“We’re challenging what we believe to be an improper sentence,” he said.

County Prosecutor Dennis Will said he believes that life without parole was a possible sentence when Lally was killed, but he needs to review the old law and Smith’s appeal before deciding what to do.

Rossman said the appeal doesn’t pertain to Rothgery’s finding that Smith had an IQ of 69, one point below the threshold that would allow him to be executed.

The U.S. Supreme Court has ruled that executing the mentally retarded is unconstitutional.

But Will said Smith’s appeal could open up that to review from a higher court as well.

Smith’s appeal was filed Friday, just days after Stanley Jalowiec, also convicted and sentenced to death in Lally’s murder, filed a motion for a new trial.

Jalowiec’s appeal argues evidence withheld by police and prosecutors would have led to him being cleared by a jury if his attorneys had access to the information during his original trial.

Daniel Smith, Raymond Smith’s son, was cleared by a jury of involvement in the killing.

Rossman said Smith, 68, is happy to be off death row, where he was confined to a cell for 23 hours a day.

Smith is now at Trumbull Correctional Institution.

“It’s quite a change from death row. I think he’s enjoying his time,” he said. “He’s thankful to be off the row.”

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

 

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