Former Augusta Public Safety Officer Jerry Ballinger was sentenced Monday in Butler County District Court on a charge of attempt aggravated indecent liberties with a child
Former Augusta Public Safety Officer Jerry Ballinger will serve 60 months probation, along with 59 days house arrest. He was sentenced Monday in Butler County District Court on a charge of attempt aggravated indecent liberties with a child, a plea agreement he had entered into on Feb. 14.
Before they got to the sentencing, concerns over whether Ballinger was satisfied with his legal representation in his hearing was addressed.
As Judge David Ricke reviewed the pre-sentence report, he quested whether Ballinger was satisfied with his attorney.
As part of the report, Ballinger was quoted as saying, "He lied to me and did not do anything for me. He was too busy with other cases. Though I asked many times, I was never given all the information the prosecutor had in the case."
These statements caused some concern for Ricke, who asked Ballinger about the statements.
"During my conferences with my attorney I've asked him for numerous things I felt we needed to have to support my side of the case, my defense," Ballinger said. "On occasions back in late July and early August he talked about subpoenaing certain things. I asked him month after month if we had seen that info. He continually said he had not seen it. It was not until late January approximately that I confronted Mr. Watts and asked him about that stuff directly. He then informed me he had stated numerous times over the months he had not seen it, then gave the indication he had not done it. He said he decided they didn't need it."
He also was concerned because he had seen numerous names on the witness list, but did not know if any were favorable to his side or not.
"Quite obviously you are not satisfied with the service of your lawyer," Ricke said. "That's why the court asked you that at the time of your plea. You entered a plea of guilty to an amended charge. The stakes remain high for you. You are facing sentencing today on a presumptive prison felony although there is a departure to the sentence. You were apparently dissatisfied enough to make these statements in the pre-sentence report."
Ricke said they needed to address this now, not after sentencing.
"The court is contemplating relieving Mr. Watts and appointing a new attorney and give that attorney time to give further advice," Ricke said. "Is that what you want the court to do, Mr. Ballinger?"
After a long pause, Ballinger answered, "No, sir."
Ricke questioned the decision when Ballinger's freedom was at stake and allowed a 15 minute recess for Ballinger to discuss it with anyone whom he wanted to talk.
After the recess, Ballinger informed the court he was ready to proceed further.
"So the reservations you expressed in writing and here orally today, you don't feel interfere with the attorney-client relationship to the degree you should get a new attorney?" Ricke asked.
"The toll this has taken on me and my family, I just wish to proceed to get this behind me and hopefully be able to move on and provide for my family," he said. "I apologize to the court for this."
His attorney, James Watts, also said he was ready to proceed.
One issue brought up was the defense had submitted an objection to the lifetime post release, which the court received an hour before the hearing, and Cheryl Pierce, assistant county attorney, said she did not know was going to be filed until she received it.
Before the attorneys stated the arguments for sentencing, Ricke asked if the victim or victim's family wished to address the court but no one did.
The father of the victim had provided a written statement for the court, which was put into the record.
Pierce then gave the state's recommendation for sentencing.
"The state does not join in on the border box finding," she said.
That would be a ruling for probation.
The state requested the court follow the presumptive prison sentence of 32 months, with a lifetime registration as an offender and lifetime post release, as well as pay associated fees.
"The state acknowledges and asks the court to keep in mind the defendant was a 44-year-old man with 20-plus years of law enforcement who knowingly engaged in sexual intercourse with a 14-year-old middle school girl," Pierce said.
In response, Watts said he had thought a long time about how to proceed in this case, saying Ballinger is a different client than many.
"I cannot or will not attempt to excuse or justify or minimize what happened here," Watts said. "No amount of remorse, no amount of regret can undo what he has done. Jerry has paid a significant price already. Everything Mr. Ballinger was, and he was a good cop, is gone and his life will never be the same. We are often tempted to evaluate our lives with some sort of a balance. We balance the good and the bad. I know the court is here to do a sentencing on a particular incident. It is difficult, if not impossible, to assign good and bad relative weights. The state asked to consider his position at the time of the incident. What I ask to acknowledge is Mr. Ballinger is a good cop. There are 10 years of evaluations where Jerry Ballinger is satisfactory or excellent."
He pointed out Ballinger also received a life saving award, recognition from D.A.R.E. and Boy Scouts, as well as assisting in the recovery from the 1998 flood in Augusta.
"I spent 11 years in the county attorney's office and as I'm sure this court is aware in any organization there are those who do the work and those who cruise along. Jerry is one who does the work," Watts said. "If Mr. Ballinger's position as an offender is to be counted against him, then this court also should acknowledge the accomplishments he has made. That is part of that balance."
Watts also pointed out having Ballinger in custody would be a problem for the Department of Corrections with him being an ex-law enforcement officer.
"He will require special protection that may end up with him being in solitary confinement," Watts said. "Jerry also has a number of health conditions. Most importantly he also is a person who's likelihood of reoffending is quite low."
According the sex offender evaluation, Ballinger has a very low likelihood of reoffending and is a favorable candidate for probation, with a number of programs available for him to attend.
Watts asked the court to make findings appropriate for the border box of probation.
Watts later said Ballinger shouldn't be held to a higher standard because he is a law enforcement officer, to which Ricke asked if that shouldn't be the case.
"No, it should not," Watts said. "Law enforcement are not superhuman, they are not special. They carry the same stresses and in fact in many ways more stresses."
Watts went on to object to the lifetime post release, stating it was unconstitutional under the 8th Amendment. He said it was not a minor thing.
"Thirty years from now if he writes a $10 forged check, he spends life in prison," Watts explained of the consequences of lifetime post release.
Watts went on to talk about other cases relating to lifetime post release.
"There are cases before my office right now where the state is seeking felony conviction in prison for not noting a phone number on a form and another for not paying the $20 fee," Watts said. "If at some point 20 years from now he is unable to come up with the current fee for registration he is guilty of another felony and in prison for life for what is a $20 fine."
Pierce then argued in favor of the post lifetime release, reiterating the crimes Ballinger committed.
"These incidents occurred at least twice – one in April and one in June," she said. "The testimony of the victim was that she in fact engaged in sexual intercourse with the defendant on two instances."
She noted the victim came from a troubled family and Ballinger engaged in a mentoring type relationship with her.
"He's shown nothing rare about himself that this court can find that would make him so unusual that lifetime post release should not be applied to the defendant," Pierce said.
She reiterated a statement Watts had made earlier when he said "If lifetime post release doesn't shock the conscious, then we don't have a conscious left."
"What ought to shock the conscious of everyone in this room is the crime," she said.
Watts replied Ballinger acknowledges he is responsible for the crime.
Ricke then asked Ballinger if he wanted to make a statement.
"I give my apologize to the court, victim, victim's family, to the community and my family," he said. "I cannot blame anyone but myself. It was a friendship intended to be mentoring and someone to listen to family problems. My family opened up to her. Due to my own stresses, that relationship turned to her listening to me. I could attempt to explain the stressors of life, death, family, finances and work took a toll on my judgement, judgement that until then was positive. This is not a justification because there is never any type of justification of the choices I made. Though a debt to society is due, I will pay a heavy debt."
He went on to say he lost the career he studied and trained for and practiced heavily in since his 16th birthday. He said he tried to use compassion and empathy on the lives he touched.
"My work as a police officer and all that it includes has all been wiped away," Ballinger continued.
He recounted events of watching his father die, stress in his family over his father's care and a court battle of misappropriation of the estate in the care of his father.
"I can only say I can only blame myself and hope the court finds incarceration would inevitably result in protective custody and placement outside this state," he said. "I understand there is a standard, but let us not forget we are all sinners and we are all human. I own up to my actions and mean to make amends for my mistakes. I can promise this will never happen again. This is not the type of person I am and I am ashamed of myself for even considering what I did, let alone doing it. I cannot blame anyone but myself for the bad choices I have made."
Ricke then proceeded with the sentencing.
"Mr. Ballinger, it is easy for any fair thinking person to look at the circumstances of this case and be angry about them," Ricke said. "It has been discussed here today as to what standards should a law enforcement officer be held to. I would consider that an aggravating factor. You used a position of trust and authority to exploit a young, troubled and vulnerable child, and I don't see anything mitigating to that."
Ricke said there were several factors to be considered by the court, including that not a single person who opposed the border box findings standing up to address that.
"Mr. Ballinger, in the view of the court, you don't deserve probation in this case, however this court must find you did qualify for a statutory alternative," Ricke continued. "It finds the treatment program to be more effective than prison to reform this offender. The defendant appears to be amenable for that treatment and that would be more effective over the long run to promote his rehabilitation than prison sanction in this case.
"Therefore the court does grant 60 months probation to be supervised by the community corrections."
He also was ordered to take part in a sex offender treatment program, have no contact with the victim or her family, register as an offender for life and have no unsupervised contact with children under 16 except his own children.
He also had to pay the $1,157.12 for the crime victim claim, $39.60 for witness fees, child advocacy assessment fee of $400, application fee of $100 and $547 in legal fees.
Ricke said he also was of the belief there should be some deprivation of liberty with the sentencing, so he ordered 59 more days of incarceration on house arrest with electronic monitoring.
Ricke did not impose any post release supervision because he wanted to consider all of the information and a decision will be rendered on that April 21.
Julie Clements can be reached at email@example.com.