Sex Offender Seeks Release from Home Confinement

By Matt Harvey
The Exponent Telegram
January 5, 2013

http://www.exponent-telegram.com/news/article_cd3e0858-5627-11e2-8bbe-0019bb2963f4.html

CLARKSBURG — A 70-year-old sex offender under house arrest for his crimes against a teenage girl wants to be released or placed on probation. His lawyer is scheduled to argue the case before the state Supreme Court Tuesday.

Bridgeport’s Charles R. Elder was sentenced to 10 to 20 years of house arrest in early 2009 by Harrison Circuit Judge James A. Matish. Elder’s crimes: Sexual abuse by a person in a position of trust and third-degree sexual assault.

Elder’s challenge of his house arrest hinges on multiple arguments presented to the justices by Huntington lawyer Steven Cook.

Among Cook’s assertions:

3 Elder’s previous lawyer was ineffective in that he allegedly didn’t take an appeal as requested, and also purportedly didn’t file a motion for sentencing reconsideration in a timely manner.

3 Matish allegedly abused his discretion by not granting Elder’s request to attend services at the Weston Church of God.

3 Matish allegedly abused his discretion in not granting Elder probation after learning his Parkinson’s syndrome, depression and post-traumatic stress disorder have deteriorated since his home incarceration.

3 The court’s eventual decision to grant Elder an hour of outdoor recreation a day — as opposed to none when the sentence was handed down — still wasn’t enough under Department of Corrections’ guidelines, Cook contends. Even if imprisoned, Elder “would have been given liberal outdoor recreation time, consisting of the majority of the day in the yard,” unless he had been in solitary confinement, Cook opined.

3 “The severe conditions” imposed by Matish “have caused the severe deterioration” of Elder, and the defendant thus should immediately be freed as a remedy for what “constituted cruel and unusual punishment” in violation of Elder’s rights, Cook argues.

If the justices agree, Elder “would be able to travel to Texas and receive the necessary medical treatment he needs and would be compensated for the excessive constitutional violations which he has endured since the trial court sentencing in this matter in February 2009,” Cook wrote.

In the alternative, Cook’s requests include that the justices: grant probation; that Elder be granted a less restrictive sentence; that he be allowed to relocate to Texas “to seek additional medical relief through the VA Medical Centers in Texas”; and that a different judge be assigned, with directions to “comply with the mandatory language which requires the Petitioner to attend a regularly scheduled religious service at a place of worship.”

A response from the state attorney general’s office, written by Laura Young, contends Elder’s lawyer was effective, that the terms of home confinement are reasonable and constitutional, and that Matish didn’t abuse his discretion in not granting probation.

Matish’s order doesn’t deny Elder’s religious freedom, Young contends; it just says he can’t take three trips a week (for a total of 3 1/2 hours each time away from home detention) to go to regularly scheduled services of the Weston Church of God.

Additionally, members of the church would be free to visit Elder in his home, “praying with him, reading the Bible with him, or even holding an organized religious service,” Young asserted.

She noted Elder hadn’t sought permission to attend church until after he’d been under house arrest. Young indicated that raises “the suspicion that when the Petitioner’s plaintive requests to be allowed to go to Texas to visit relatives went unfulfilled, that the request to go to church came next.”

“Had this pedophile ... gone to prison, he would be permitted to attend services in jail,” Young wrote. “He would not be (bused), on a bus where children ride, to church three times a week, where children attend.”

Additionally, Elder’s prior lawyer testified the defendant “was the luckiest client he ever represented, and that the original sentence was incredibly lenient,” Young asserted.

“What was (the lawyer) to appeal? There is no indication that the plea was involuntary,” Young wrote. “The sentence was within legal limits. In fact, the sentence was incredibly lenient. Any issue with specific restrictions of home confinement could have and should have been addressed by (Elder) to the home confinement officer, rather than wasting the resources of the judicial system.”

Also, Young asserted that had Elder been sentenced to prison, “it would not be a basis for ... relief that he was sick and depressed. Therefore, being sick and depressed should not be a basis for making his home incarceration less restrictive.”

Elder’s “specific complaints, as adduced” at a hearing on his challenge to his house arrest, “indicated that he wanted to be able to walk his dog and to go out of state to visit relatives,” Young wrote.

“The testimony indicated that (Elder) was depressed because of the conditions of home confinement,” Young wrote. “However, the testimony also indicated that all persons who are confined suffer from depression.

“One can only posit that the depression that (Elder) felt while sitting in his living room watching ESPN was significantly less than he would have felt had he been confined to Mount Olive (prison) for the 11 to 25 year sentence that everyone, including defense counsel anticipated,” Young wrote.

The case is scheduled fourth on the Supreme Court’s morning docket. The justices are to begin hearing the arguments in the first case at 10 a.m. next Tuesday. A decision could come in weeks, but also could take several months.

The justices may see the case as one in which precedent(s) for home confinement can be established.

Elder’s victim was a female who was between 13 and 17 years old at the time of the October 2005 crimes, according to the State Police sex offender registry and prior statements in court.