Court: Judge wrong to shorten rape sentence

By: By Corey Friedman -

A Moore County judge abused his discretion when he overrode state sentencing rules and cut a child rape convict’s prison term in half, the N.C. Court of Appeals ruled Tuesday.

Resident Superior Court Judge James M. Webb had tossed out a plea agreement and reduced Zachary David Thomsen’s 25-year minimum sentence to 12 years, reasoning in December 2013 that killers convicted of second-degree murder can be locked away for less time than Thomsen was facing.

A divided three-judge panel reversed Webb’s sentencing order this week, finding that the mandatory minimum sentence Thomsen should receive on convictions of first-degree rape and first-degree sexual offense is appropriate given the serious nature of the crimes.

“We are unpersuaded by the trial court’s comparison of the sentence imposed in this case with the sentences imposed in other, unrelated second-degree murder cases,” Judge Robert N. Hunter Jr. wrote in the appeals court’s opinion.

Thomsen, 21, of Whispering Pines, admitted to vaginally and anally raping an 8-year-old girl left in his care in May 2012, according to court records. In a plea agreement with prosecutors, lesser sex abuse charges against him were dismissed and Thomsen would serve a minimum of 25 years to a maximum of 35 years in prison.

Webb first objected to the prescribed sentence when Thomsen entered his plea, Hunter wrote. Webb said he believed the 25-year sentence was in the aggravated range. Though both the prosecutor and defense attorney corrected him, Webb postponed sentencing to study the state guidelines.

Structured sentencing tables provide presumptive ranges and allow for more lenient sentences when courts find mitigating factors and harsher sentences when aggravating factors are found to exist.

When the case came back to his courtroom, Webb questioned the victim’s mother about a prior incident when the 13-year-old son of the girl’s caregiver allegedly touched the then-3-year-old girl inappropriately on the outside of her clothing.

“(The woman) responded adversely to this questioning, asking: “Why [do] we have to bring this up?” and “Why do we have to talk about this, sir? and “Why is this important, sir?” Hunter wrote in a summary of the case.

On Dec. 13, 2013, Webb made findings of several mitigating factors in Thomsen’s case, including that the victim’s parents “allowed the minor child to be in the custody of the teenaged defendant without responsible adult supervision.”

The Court of Appeals rejected that finding because Thomsen was 18 years old and a legal adult at the time of the sexual abuse.

“For the reasons stated above, this finding is manifestly unsupported by reason,” Hunter wrote. “Defendant…had no prior criminal record and nothing in his record indicates Defendant was prone to this type of criminal behavior when he was left alone with (the victim).”

Other mitigating factors Webb cited were the absence of physical trauma to the victim’s private parts at the time of her examination, that the defendant was not designated a sexually violent predator and that the defendant had participated in Junior ROTC while in high school.

After announcing his findings, Webb accepted the sentence agreed upon in the plea arrangement and immediately set it aside, entering a sua sponte, or self-initiated, order for appropriate relief.

In the order, Webb’s findings of fact placed responsibility on the victim’s parents for allowing her to be “in the custody of the teenaged defendant without responsible adult supervision” after the incident five years prior involving the caretaker’s son.

Webb wrote it was “unconsciousable [sic]” that Thomsen be sentenced to 25 to 35 years in prison given the facts of the case.

On appeal, Hunter wrote that Webb’s finding of a lack of adult supervision constituted “a manifest abuse of discretion.”

Webb determined the original sentence constituted cruel and unusual punishment in violation of the Eighth Amendment, an argument the Court of Appeals rejected.

“The State and defendant agreed to a consolidated minimum sentence of 300 months’ imprisonment,” Hunter wrote. “A 300-month sentence is not grossly disproportionate to the two crimes to which Defendant pled guilty. Furthermore, Defendant’s 300-month sentence in this case is less than or equal to the sentences of many other offenders of the same crime in this jurisdiction.”

Judge Richard Dietz concurred with Hunter in the court’s opinion.

Chief Judge Linda M. McGee dissented on procedural grounds, arguing that the prosecution did not have the authority to appeal Webb’s motion and order for appropriate relief. Her 12-page dissenting opinion did not address the facts of the underlying case.

The ruling vacates Webb’s order and sends the case back to Moore County for a new sentencing hearing.

Reach Editor Corey Friedman at 910-817-2670 and follow him on Twitter @corey_friedman.


By Corey Friedman