Michigan Court of Appeals Vacates Judge’s Sentence in Sexting Case for a Second Time

In 2010, Joshua Whittum of Eaton Rapids, who was then 20 years old, pleaded guilty to child pornography charges. The Circuit Judge in the case at the time who is now retired, Calvin Osterhaven, imposed a shorter sentence on Whittum than what was called for under state sentencing guidelines, giving Whittum a two-year sentence. According to The Lansing State Journal, the minimum penalty for this offense under state sentencing guidelines is 3 years and 9 months.

Michigan criminal appeals attorneys understand that a judge may depart from the state’s guidelines if there are clear reasons given to support the decision. According to the appeals court, clear reasons were not given by Osterhaven. On Wednesday February 20, the appeals court reached a unanimous decision and vacated Osterhaven’s sentence; this is the second time the state Court of Appeals has found that the judge “incorrectly imposed” a reduced sentence in this case.

Whittum, who is now 23 years old and in a state prison, pleaded guilty after it was discovered that he was “sexting” with five girls ages 14 to 17, allegedly exchanging nude photos with the girls. News reports also claim that Whittum encouraged some of the girls to send video or audio clips of themselves to Whittum via cell phone which were sexual in nature.

Sentencing hearing transcripts indicate that Osterhaven expressed concern about imprisoning Whittum for an extended period of time; he ultimately gave the defendant two years, saying that while he did not condone what Whittum did, the sentencing guidelines sometimes did not make sense and that in this case, he didn’t really know what justice was.

Ultimately the three-judge appeals court panel felt that Osterhaven’s reasons were too broad, and that he did not “distinguish valid from invalid sentencing considerations.” The case will now go back to circuit court, although it has not yet been determined when it will go before a new judge.

Sex crimes are considered some of the most heinous of all criminal offenses, and unfortunately are often hard to disprove which can lead to harsh sentencing for individuals who are innocent. Whether you were wrongly convicted or believe you have grounds to appeal your sentence, consult with a skilled and capable Michigan criminal appeals lawyer.

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