Judge refuses modification in sentencing for child death

A senior-status judge on Monday refused to modify the sentence of an Upshur County woman after her appeal on grounds that it had been too harsh was rejected by the West Virginia Supreme Court last month.

Misty Dawn Linger had pleaded guilty in August 2011 to a lesser charge of child neglect creating the risk of serious bodily injury or death, and she had been sentenced in November 2011 to serve a one- to five-year term in the penitentiary by former Upshur County Circuit Court Judge Thomas Keadle.

Linger had been indicted on a more serious charge that could have carried a prison sentence of up to 15 years, but jurors could not reach a verdict during the April 2011 trial.

Defense attorney Jim Hawkins appealed the sentence to the state Supreme Court. The five justices, however, ruled unanimously that Keadle did not abuse his discretion in the sentencing hearing, and that Linger benefited by being allowed to plead to a lesser crime. The justices ruled that the sentence was not lengthy enough to be considered cruel. Linger had been free on bond while the appeal was being considered.

Hawkins, while seeking an alternative sentence to prison, argued that his client had already “been punished beyond imagination,” adding that sending Linger to prison would not stop future acts of child neglect from happening in society.

“I do not see from any perspective – other than vengeance – a useful purpose for incarceration,” Hawkins said. “It serves no practical purpose.”

The charge against Linger stemmed from a May 2009 incident in which her 3-year-old son died of hyperthermia after being unattended in a locked car with the windows rolled up. The boy died at St. Joseph’s Hospital in Buckhannon.

Lt. Mark Davis of the Upshur County Sheriff’s Department testified Monday that the boy was strapped into his car seat on a day when the temperature was in the low 80s outside and reached over 100 degrees inside the parked car.

“She walked back into the house and left him there,” Davis said. “He died in that vehicle. His skin was blistered from the heat. Seeing a child in the vehicle and acknowledging that and walking away – that’s not taking care of that child.”

Davis said he was not there when Linger is alleged to have made a statement to the coroner about seeing the child in the car. Davis also said there was no conclusive evidence as to how the child came to be in the car.

“Elijah’s death was an accident,” Linger said. “I live every day with knowing my child passed away. I live with the ‘What ifs’ every day. Nobody sees me on a daily basis with what I go through. I can’t have any more children. When I had Elijah, they told me it was a miracle I had him.”

Senior-status Judge John Henning said he did not think it was his place to change the sentence imposed by another judge, saying that job fell to those on the Supreme Court. He also pointed out that Linger agreed to being neglectful as contained in the terms of the plea agreement she entered into back in August 2011.

“If you did not agree, you could have gone to trial,” Henning said. “Nobody forced you to agree to that. If that’s not what happened, you could have objected.”

Henning said sending Linger to prison did serve a useful purpose in addition to punishing her for wrongdoing.

“There is a TV camera,” he said, pointing to the back of the courtroom. “They may put it on the news. It may help to save some other child’s life (whose parents wouldn’t) let their child sit in a car and roast to death.”

Henning also denied Linger’s request to have additional time before reporting to prison so that she could arrange for the care of her husband. Henning said Linger knew this day would be coming, and that she had more than sufficient time to prepare for it. He asked court officers to contact Adult Services to arrange for the care of Linger’s husband.