Crime

Shorter sentence may give inmate his freedom

KENNEWICK -- A 42-year-old Kennewick man sentenced six years ago to nearly 21 years in prison for pointing a pistol at a police officer is now a free man.

Douglas James Conner was back in Benton County Superior Court on Wednesday asking for a shorter sentence -- or outright dismissal -- for his 2004 conviction of attempted first-degree assault.

He got the opportunity to argue for less prison time when the state Court of Appeals ruled in 2006 that a calculation error gave him too long a sentence.

Judge Bruce Spanner fixed the error, then knocked off some more time.

Spanner, who was not the original judge, found Conner had a diminished capacity, meaning he didn't have the ability to understand his actions on Aug. 23, 2003, when he pointed a gun at a Kennewick police officer.

Conner's capacity to appreciate the wrongfulness of his conduct "was significantly impaired," Spanner said. "I believe he was involuntarily addicted to opiate pain medication."

When Spanner formally resentences him, he said he plans to give Conner six years, four months in prison, which is below the standard range but includes additional time because the crime involved use of a deadly weapon.

Conner has been out of custody since February on a $5,000 appeal bond and already has served seven years behind bars.

He also plans to appeal his conviction again because he claims his trial attorney didn't properly defend him and has new evidence that he says proves he is innocent. He claims he has a witness that will say then-Sgt. Brian Swartswalter improperly fired his rifle at Conner during the confrontation, according to court documents.

Those issues were not considered as part of the resentencing hearing. Conner and his attorney, J.J. Sandlin, said they wouldn't make any comments on the case until after Conner is officially resentenced.

Conner said he never pointed guns at police and was just trying to kill himself because of chronic pain. He had used his last fentanyl patch 72 hours before and was suffering from withdrawals but couldn't get any more medication prescribed. He also was drinking that night when he grabbed a pistol from his bedroom and put it to his head.

When he couldn't pull the trigger, he fired 10 rounds into the ground outside his East 15th Avenue home.

Swartswalter, the first Kennewick officer to arrive on scene, said he saw Conner grip the pistol with both hands and aim it at him, so he fired his M-16 rifle when Conner ignored orders to drop the gun. Swartswalter missed hitting Conner.

Conner later brought a revolver and a shotgun out of the house and verbally threatened to kill police with the guns, though he never pointed them at the officers. Conner testified that he only wanted to hurt himself and hoped police would make a mistake and shoot him.

Spanner said it was clear that Conner was in constant, debilitating pain, suffered from the effects of his father's suicide, was suicidal at the time and was having marital problems. Those issues led to Conner's diminished capacity, he said.

"I believe this crime occurred while, and because, he was in an opiate withdrawal," Spanner said. "Essentially ... he was attempting to do suicide by cop."

Spanner also said if there was ever a time to apply the diminished capacity exception to justify a shorter sentence, it should be because of Conner's opiate withdrawal.

At the time of sentencing, Judge Carolyn Brown told Conner she felt it was an unfair sentence, but that she was bound by law to give the lengthy term because of the mandatory sentencing enhancements because weapons were involved. Brown had said that if she could, she would have ordered Conner to a supervised community monitoring program.

Conner had been given a bottom-range sentence of five years, 10 months, then had 15 years added on for three sentencing enhancements. His case was sent back for resentencing by the Court of Appeals because his sentence exceeded the maximum 10-year term for the "Class B" felony.

His diminished capacity was not presented as a defense during the trial nor was it offered as a factor to seek a shorter sentence from Brown.

On Wednesday, Conner's attorney argued that his client should not be subject to any sentencing enhancements because Conner wasn't properly notified about the weapons enhancement. Sandlin also said Conner's diminished capacity should get him a reduced sentenced and asked for a low enough sentence that Conner could get credit for time served "so he can walk out of here a free man."

Prosecutor Andy Miller said the charging information was clear because it included notices of the three deadly weapon allegations, even if it didn't specify how much time the enhancements add to the sentence. And he said there was no question Conner possessed three firearms the day of the crime -- Conner testified that he did.

Miller also argued that Conner's testimony about what happened in 2003 contradicts his diminished capacity claim because he was "very strong, very forceful that he remembers where he was ... and that he's not guilty of this crime."

Conner should have to serve the 10-year maximum sentence, Miller said.

-- Paula Horton: 582-1556; phorton@tricityherald.com

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