New Albany man gets 20 years in prison, again

Clark County

Discussion

May 25, 2007

By JENNIFER RIGG The News and Tribune Fri May 25, 2007, 12:59 PM EDT

NEW ALBANY — A New Albany man again was sentenced to 20 years in prison Thursday after his initial 20-year sentence for shooting and killing a Jeffersonville man was overturned by the Indiana Court of Appeals.

Floyd County Circuit Court Judge J. Terrence Cody gave 29-year-old Steven I. Paul the same sentence — 20 years with one year suspended to probation — as he did in 2004 after a jury convicted Paul of aggravated battery. Paul was originally charged with murder for shooting 35-year-old Donald Burnett, but a jury returned a guilty verdict for a lesser offense of aggravated battery.

Judge Cody then decided that five aggravating circumstances existed in the case — the main one being that the battery resulted in Burnett’s death — and sentenced Paul to the maximum sentence. Without the aggravators, Paul likely would have received the presumptive sentence of 10 years and could possibly have been released from jail as early as next month.

Judge Cody’s original sentence was overturned after rulings by the U.S. and Indiana supreme courts led to changes in sentencing rules. A jury is now required to find that aggravated circumstances exist before a judge can use them to lengthen a presumptive sentence.

But last month, a Floyd County jury partially agreed with Cody and decided two aggravating circumstances existed in the case: the battery resulted in Burnett’s death and the shooting occurred in a public place during the day. They rejected two others: that Burnett was unarmed and that he was shot in the back.

Only one aggravator is needed for a judge to enhance a sentence.

Paul was arrested immediately following the Nov. 1, 2002, shooting near Bottles Unlimited in New Albany. Paul and Burnett got into some kind of altercation that culminated in Burnett assaulting Paul’s girlfriend, Paul alleged during the trial. Paul then shot Burnett once in the stomach and again in the back as he walked back to his truck.

Paul’s attorney, John W. Mead of Salem, said Paul fired the second shot because he was fearful Burnett was going to retrieve a gun from his truck.

Floyd County Deputy Prosecutor Steve Owen, however, said a large group of witnesses testified during the 2004 trial that Burnett did not assault Paul’s girlfriend and that the attack was unprovoked.

During Thursday’s second sentencing hearing, Mead asked Cody to consider what he considered several mitigating circumstances — those that could lessen a sentence — including Paul’s completion of two college degrees while incarcerated at Branchville Correctional Facility in Tell City and that he had a minimal criminal history. Cody rejected Mead’s request, saying he found no mitigating factors in the case, and that the fact that Burnett died from his injuries “far outweighed any other circumstances.”

“This was the ultimate battery,” Cody said from his bench. “Mr. Burnett died. I cannot get that out of my mind.”

Burnett’s mother, Shirley Burnett, and his wife, Lisa Burnett, said they were grateful Cody again gave Paul the maximum sentence.

“What he did was wrong,” Shirley Burnett said outside the courtroom. “He knew he was wrong. He didn’t have to kill him.

“I can sleep better tonight knowing that he’s not going to get out next month.”

Owen said he was pleased with the sentence, but was still frustrated with Paul’s earlier aggravated battery conviction.

“We always believed this was a murder, so I still feel some sympathy towards (Burnett’s) mother and wife,” he said.

Mead said he was disappointed in the sentence and wasn’t ruling out another appeal.

“Obviously, when you use five aggravators to get 20 years, and the jury later finds only two, that ought to mean something,” he said about Cody’s original sentence and the jury’s findings last month. “I realize (Burnett) is dead, but the jury did not find (Paul) guilty of an offense in which killing was an element.”

Paul will now be eligible for release in 2011. Mead said it’s possible Paul could receive up to a year of credit for his college degrees, which could place him up for parole in less than three years.