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Disciplinary Counsel v. O'Neill9/7/2004
tement. I'm stunned at everything that has taken place. And she says, "You should have been offered a better deal. Go up and talk to Angie Canepa and if you can get a better deal or a misdemeanor in this case, I'll let you withdraw your plea and come back." (Transcript Vol. IV -- 254) Kerns did speak to Canepa who refused to change the plea.
86. Kerns then returned and asked to talk to Judge O'Neill. Kerns was concerned because dispensing the medications Smiley required due to his transplanted liver had been a problem when Smiley was briefly in jail when he was originally arrested on these charges. Kerns testified,"...By that time, the only thing that was left was to remind her of my client's issues medically.
Q: Did you do that?
A: Yes, I did. ...Her initial reaction to me was to look me dead in the eye and tell me that he should not have had sex with a 13-year-old if he didn't intend to go to jail, and that it wasn't her issue, that she guessed the sheriffs would have to handle it. Then she indicated that she would dash off some kind of entry that would be sure and enforce the Franklin County Sheriffs to make sure that they gave him seven pills a day." (Transcript Vol. IV -- 256) Kerns, along with Smiley's mother, took the seven medications Smiley took every day to the jail and Judge O'Neill did enter a special order regarding Smiley's medications (Ex. 241).
87. Judge O'Neill requested to speak later that afternoon with Canepa, who was Bolognone's supervisor. Canepa testified: "she was indicating to me that on this particular case, she was upset with (Bolognone) for a number of reasons. The fact that she had let the victims leave, the fact that she would not waive her right to the pre-sentence investigation, and the fact that she did not offer her -- this particular defendant a better deal, that she (Bolognone) should have offered him a nonsex misdemeanor because this kid was not the type of kid that should have spent a day in jail for this offense. ... She (Judge O'Neill) wanted for us to change the plea post- -- you know, to change even though it had already been entered. She wanted me to have her do that." ..."Her indication to me was that because Angela wouldn't waive the pre-sentence investigation that she was compelled to do the only thing she could do, which was to impose a prison term; and that was upsetting to her." (Transcript Vol. IV -- 282-283) Canepa did not believe that Judge O'Neill was forced to impose a prison sentence: "it is true that she could not have imposed community control on that date, but she certainly could have simply ordered the pre-sentence investigation, set it down for sentencing on another date, and done whatever she felt was appropriate at that time."(Transcript Vol. IV -- 285)
88. Judge O'Neill's Answer to the Amended Complaint states: "Judge O'Neill orders a PSI if it is requested." ( 250) "Her conversation with Ms. Canepa had nothing to do with the merits of the case." ( 254) "At the time of Mr. Smiley's sentencing, Judge O'Neill had been informed of all facts concerning Mr. Smiley and the offense. In her judicial experience, a PSI in such a case would not yield any additional findings...Because Ms. Bolognone would not waive the PSI, the sentencing statutes would not permit Judge O'Neill to sentence the defendant to probation and she therefore sentenced him to the minimum prison term." ( 256) The answer does not mention any other justification for the sentence.
89. Canepa discussed Smiley's case with Bolognone. Bolognone was not disciplined or sanctioned -- Canepa advised her for the future that Judge O'Neill did refuse to do PSI's. Canepa explained that because of Judge O'Neill's concern about her d
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