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Saturday, September 13th, 2008

Plea proposal rejected

By William Kincaid
Mercer County Assistant Prosecutor Matt Fox defended his objection to a plea proposal for a Chickasaw man charged in the deaths of four men last March in an 11-page document filed with the court five minutes before closing Friday.
Citing Ohio law and precedents, Fox said Common Pleas Judge Jeffrey Ingraham's indication that he was open to a no contest plea on four counts of manslaughter by Nick Schwieterman, was stepping on a responsibility belonging solely to the prosecutor's office (the state - in legal speak) and would be an improper exercise of judicial authority on the part of the court.
At a meeting in the judge's office of the Mercer County Common Pleas Court on Thursday afternoon, Fox rejected 22-year-old Nicholas Schwieterman's intention to plead no contest to the first-degree felony charges of involuntary manslaughter.
Schwieterman was indicated on 16 counts, which includes charges of operating a vehicle under the influence of alcohol or drugs of abuse, possessing drugs and trafficking in drugs and vehicular homicide. The charges range in seriousness from second-degree felonies to first-degree misdemeanors.
As the stalled negotiations in the judge's office ran on, more than 100 people were packed in the courtroom, many expecting a plea agreement. Ingraham announced to those in the courtroom that no agreement had been reached. Fox was asked to submit his arguments against the proposed plea agreement to the court.
Fox argued that it is the sole discretion of the prosecution to decide whether to prosecute and what charges to pursue.
Fox also tackled what was titled Allied Offense of Similar Import or Merger Issues involving the charges against Schwieterman in his submission to the court and concluded that the offenses charged are not so similar that the commission of one offense will necessarily lead to another. They should not be merged, he said.
The manslaughter charges do not necessarily require prison terms. However, the second degree felony offenses, which would have been dropped if the court accepted Schwieterman's plea, carries a mandatory prison term, according to Fox, which ranges from two to a maximum of eight years for each offense.
Also, Schwieterman's proposed plea would have left four other counts - felony drug possession, drug trafficking, and two OMVI offenses - unresolved.
"The drug possession offense is an element of the involuntary manslaughter offenses, but the others are not," Fox wrote.
A change of plea typically occurs when prosecutors and defense counsel reach a negotiated agreement. Sometimes that agreement involves amended charges and/or dismissal of some charges.
On Thursday, Ingraham moved the scheduled trial from Sept. 22 to Oct. 17, saying it would be unreasonable to proceed with a trial given the latest developments. He also set a final pretrial hearing Oct. 19, negating one planned Sept. 16.
Schwieterman reportedly was driving a 1996 Pontiac Bonneville during the early morning hours of March 15, when he allegedly failed to stop for a stop sign at the intersection of Brockman Road and County Road 716A north of St. Sebastian. His car struck a 1995 Pontiac Grand Prix driven by Moeller, who was pronounced dead at the scene along with three passengers.
An expert witness for the prosecution testified at a May motion hearing that blood and urine tests performed in the hours following the crash showed the presence of alcohol, cocaine and marijuana in Schwieterman's system.
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