Written by Patty Decker Tuesday, 13 October 2009 13:24
A 43-year-old Hillsboro man was sentenced Tuesday in Marion County District Court to two life terms after being found guilty of rape and aggravated indecent liberties with a child.
Randy Herbel faces a mandatory minimum of 25 years on each count for raping the 5-year-old child he was baby-sitting Aug. 1-2, 2006, in Hillsboro, according to court documents. He was convicted July 15.
During sentencing, the court also noted some sexual predators can face even more time in a mental facility following prison, if convicted in civil court.
Under Kansas law, Eighth Judicial District Judge Michael Powers of Marion said the state can file a civil case to have someone declared a sexual predator.
“If that is done, a trial is held, and if the person is found to be a predator, they are held in a mental facility until they can comply with the provisions of the statute,” Powers said.
A sexual predator case is separate from a criminal case.
Powers said someone could go to prison on a criminal conviction, serve the sentence and then still not be released if the person has been found to be a sexual predator in the civil case.
In other words, the person would come out of prison and immediately be sent to the mental facility to deal with the predator finding.
The judge’s reference to the possibility of more time in a mental facility was related to a sexual predator case currently being filed.
In Herbel’s situation, no sexual-predator case has been filed against him.
The sentencing phase followed the two-day jury trial held mid-July when six men and six women found Herbel guilty on one count each of rape and aggravated indecent liberties.
Herbel’s sentencing fell within what’s known as Jessica’s Law. Kansas enacted Jessica’s Law July 1, 2006, one month before Herbel committed his crimes.
The law was named for Jessica Lunsford, who was raped and murdered in Florida. It is designed to punish sex offenders and reduce their ability to re-offend.
Herbel’s conviction and subsequent sentencing stems from the incidents reported three years ago by the 5-year-old herself.
“Jessica’s Law made both rape and aggravated indecent liberties with a child ‘off-grid person felonies,’” said Ashley Anstaett, director of communications in the Kansas Attorney General’s office in Topeka.
“Prior to Jessica’s Law,” she said, “rape would have been a Level 1 felony and aggravated indecent liberties with a child was a Level 3 felony. The sentences available are tougher than they were prior to Jessica’s Law.”
The right to a speedy trial is guaranteed by the Sixth Amendment. It is intended to ensure defendants are not subjected to unreasonably lengthy incarceration prior to a fair trial. But what happens when, for whatever reason, the defendant slows the processs?
After his arrest in September 2006, Herbel spent about 700 days in the Marion County jail, according to Marion County Sheriff Rob Craft. In April 2007, Herbel posted bond, but in March 2008, it was revoked.
Craft said it would be difficult to calculate the cost of his incarceration. But based on 700 days, he estimated Marion County taxpayers conservatively paid $10,000 for his housing, meals, laundry and other incidentals.
According to Anstaett, Herbel also had six public defenders during the process. Reasons for their dismissal varied, Anstaett said, but taxpayers paid about $11,000 for his defense.
Patricia Scalia, director of the Kansas State Board of Indigent Defense Services, broke down Herbel’s defense costs based on three separate cases within a three-year time frame.
Anstaett was unable to calculate by deadline the cost to the state for prosecuting Herbel.
The first jury trial was scheduled to begin in September 2007, then delayed to December 2007. It continued to be delayed for various reasons after that.
After Herbel’s bond was revoked in March 2007, court documents indicated medical concerns, both physical and mental. Herbel was sent to Larned State Hospital for a competency evaluation and medical opinions. He also suffered from physical ailments and, following surgery in Wichita, his physician would not allow him to climb stairs, Craft said.
Without an elevator at the county jail, Craft said Herbel was transported to the facility in El Dorado, where he stayed for about 30 days at a cost of about $1,200.
Expenses included transportation to and from Marion, plus the cost of the deputies who accompanied him.
Craft did say that physical ailments were paid by Herbel’s private insurance.
A typical jail sentence will vary depending on the severity of the crime. Craft said an average stay for adult inmates is about 10 days.
“This would be for people with warrants, DUIs or minor offenses,” he said.
At the Marion County Jail, the average length of stay is skewed, he said, by the current inmate population.
“We have two people in for a 14-month sentence,” he said.
Craft added he also has one prisoner in jail for 17 months, a couple for six months and then the two convicted sex offenders—one awaiting sentencing and Herbel waiting for a place in the state prison system.
After last week’s sentencing, Hillsboro Police Chief Dan Kinning, who was involved with the case from the beginning, said he was glad it’s over.
“I just hope the conviction brings some closure for everyone,” he said.