|Jonathan Joseph Bodary|
PRESCOTT - After three tries at sentencing former Bradshaw Mountain High School teacher Jonathan Bodary, who violated sex-offender probation, proceedings stalled when his attorney presented an argument that the judge could not immediately resolve and has the potential to be precedent-setting.
Bodary, 43, was a teacher and assistant coach at BMHS. His conviction resulted from sexual conduct with three BMHS students, 14 to 17 years old, in 1995 and 1996.
In January 1999, he was sentenced to prison, followed by lifetime sex offender probation for some counts. Bodary appealed, saying his attorney was ineffective during sentencing. In February 2000, he was re-sentenced and served eight years before beginning the term of lifetime probation.
In October 2010, Bodary's probation officer in Michigan, where had he been living, reported that he had downloaded more than 1,000 pornographic images, which authorities said they found on his computer. That would violate one of the terms of his sex offender probation, mandating that he could "not utilize the Internet for any matters related to sex."
Bodary has admitted to doing that, but claims it was on the advice of a divorce attorney in Michigan who told him to find and download nude photos of his wife to prove she was running an Internet porn business as evidence to use against her in a child custody case.
On Thursday, Superior Court Judge Celé Hancock held the third court appearance in which she planned to sentence Bodary, but his attorney, John Sears, presented an argument that she could not resolve during the appearance and which, depending on her decision, could set legal precedent.
Sears argued that the state could not ask for - and the court could not impose - an aggravated term without having a jury decide beyond a reasonable doubt the validity of the aggravating factors the state alleges, if the defendant wishes.
When Bodary was originally sentenced in 2000, that wasn't a part of the law, but things have changed. Now, written plea agreements take it into consideration and include wording that bypasses the jury issue, but back then, they did not.
Sears argued that, because when someone is put on probation the sentence is "suspended," Bodary is actually being sentenced for the first time now, in 2013, and it should be done under current laws.
An aggravated term could be two or 2.5 years in prison, depending on how the law is read. Sears is arguing for 1.5 years.
If Hancock agrees with that concept, it could set a legal precedent for any case older than 2004, the year the U.S. Supreme Court made the ruling that changed things.
To have a jury determine the aggravating factors in a case, the lawyers would have to put on a complete trial; the plea Bodary took in 2000 meant he never had a complete trial back then.
Hancock asked both sides to issue written briefs by May 17 and said she would inform them of the next date she would hear oral arguments.