A woman who completed her six-year prison sentence for killing her autistic child in a house fire will be in Cayuga County Court on Friday to find out if she can be re-sentenced to more time behind bars because of a court error.
During a court appearance on Oct. 6, Cayuga County District Jon Budelmann said Michelle Davis, 45, never received the state mandated post-release supervision when former county Judge Peter Corning sentenced her to prison on June 8, 2000, for first-degree manslaughter and second-degree arson.
Davis had admitted that she set the stairwell of her Fleming home on fire while her 13-year-old son, Daniel Leubner, was asleep upstairs. An autopsy report confirmed he died from smoked inhalation.
According to state law, anyone who received an indeterminate sentence for a violent felony was required to receive the supervision because they would not be eligible for the parole that came with an indeterminate prison sentence.
Davis' attorney, David Elkovitch, who represented her during the original sentencing, said he did not believe it was legally or morally right to send Davis back to prison because the court made a mistake.
“She has already been out for 3.5 years. I'm sorry but I don't think you can do that, you can't send someone back to prison who has already served their time,” Elkovitch said. “She was originally supposed to be on for a post-release supervision hearing, and now (Budelmann) wants to re-open the whole case. The whole sentence was not illegal, the court forgot to add the post-release supervision.”
Budelmann had previously said his office wanted to add the supervision, which would annul her original sentence and allow his office to push for a new and longer one because it would be in the best interest in justice for Daniel.
Both sides were originally scheduled to be in court on Monday to make their oral arguments, but the case was postponed because visiting Monroe County Judge Elma Bellini was in a minor car accident on her way to court, Budelmann said.
Bellini volunteered to take the case after Cayuga County judges Thomas Leone and Mark Fandrich recused themselves. Leone passed because he had represented Daniel's family in family court and Fandrich said one of his current employees acted as co-counsel for Elkovitch during the original court proceedings.
Given the nature of the case, Elkovitch said he would not be surprised if Bellini made a decision on Friday after the final arguments were made.
“You can't be punished twice for the same crimes,” Elkovitch said. “We have both turned in our written arguments to the judge, and I wouldn't be surprised if she makes a ruling from the bench on this. You just can't do this, it just doesn't make any sense to re-sentence her. She paid her debt to society.”
Staff writer Nate Robson can be reached at 253-5311 ext. 248 or nathan.robson@lee.net
Davis had admitted that she set the stairwell of her Fleming home on fire while her 13-year-old son, Daniel Leubner, was asleep upstairs. An autopsy report confirmed he died from smoked inhalation.
According to state law, anyone who received an indeterminate sentence for a violent felony was required to receive the supervision because they would not be eligible for the parole that came with an indeterminate prison sentence.
Davis' attorney, David Elkovitch, who represented her during the original sentencing, said he did not believe it was legally or morally right to send Davis back to prison because the court made a mistake.
“She has already been out for 3.5 years. I'm sorry but I don't think you can do that, you can't send someone back to prison who has already served their time,” Elkovitch said. “She was originally supposed to be on for a post-release supervision hearing, and now (Budelmann) wants to re-open the whole case. The whole sentence was not illegal, the court forgot to add the post-release supervision.”
Budelmann had previously said his office wanted to add the supervision, which would annul her original sentence and allow his office to push for a new and longer one because it would be in the best interest in justice for Daniel.
Both sides were originally scheduled to be in court on Monday to make their oral arguments, but the case was postponed because visiting Monroe County Judge Elma Bellini was in a minor car accident on her way to court, Budelmann said.
Bellini volunteered to take the case after Cayuga County judges Thomas Leone and Mark Fandrich recused themselves. Leone passed because he had represented Daniel's family in family court and Fandrich said one of his current employees acted as co-counsel for Elkovitch during the original court proceedings.
Given the nature of the case, Elkovitch said he would not be surprised if Bellini made a decision on Friday after the final arguments were made.
“You can't be punished twice for the same crimes,” Elkovitch said. “We have both turned in our written arguments to the judge, and I wouldn't be surprised if she makes a ruling from the bench on this. You just can't do this, it just doesn't make any sense to re-sentence her. She paid her debt to society.”
Staff writer Nate Robson can be reached at 253-5311 ext. 248 or nathan.robson@lee.net
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born-in-bklyn wrote on Nov 11, 2008 2:19 PM:
nature lover wrote on Nov 11, 2008 9:32 AM:
mark wrote on Nov 11, 2008 8:43 AM:
mark wrote on Nov 11, 2008 8:43 AM:
corkey2669 wrote on Nov 11, 2008 8:39 AM:
blueyankee443 wrote on Nov 11, 2008 6:45 AM:
e big people are who establish their ow
n kind of laws.These are not the laws o
f the land,these are laws,of she must b
e guilty.It was ouir mistake,not hers.S
he must go back to prison,when we make a mistake.She made a mistake,and someon
e died. Now we can still punnish her,wh
o says we have to be fair,just because
she been out of prison for over three y
ears. We should get an award for sendin
g her back to prison,and have people ha
ppy we are doing our job.Who cares about her? "