Judge gives same penalty in resentencing

than 13, and unlawful contact and corruption of minors, and ordered to serve nine to 18 years in prison. But Superior Court remanded the case for resentencing, finding that Judge McDaniel should have graded unlawful contact as a third-degree felony, punishable by no more than seven years.

When Judge McDaniel resentenced Bernal in 2015, she gave him six to 17 years, stacking each penalty consecutively.

Superior Court remanded the case again in December, saying she failed to order a pre-sentence report in the 2015 proceeding and failed to address why she departed from the guidelines range.

“At resentencing, the sentencing judge is directed to demonstrate on the record and ‘with clarity[,]’ that it considered the guidelines in ‘a rational and systematic way,’ and, if applicable, ‘made a dispassionate decision to depart from them,’” the court wrote.

Following witness testimony Thursday, Judge McDaniel read from lengthy remarks addressing Bernal’s attorney, Victoria Vidt, and the claims she made to Superior Court.

In Ms. Vidt’s appellate brief, she included a list of cases then on appeal from Judge McDaniel’s courtroom in which she sentenced the defendants to the maximum penalty and ordered individual counts to run consecutively.

Judge McDaniel criticized the list she said was drawn anecdotally from Ms. Vidt and her colleagues in the public defender’s office, and said instead it would have been helpful to do a full, scientific study.

“This court has conducted a complete, statistical analysis of cases since 2012,” she continued.

From 2012 to 2016, Judge McDaniel said, she sentenced defendants on 8,391 offenses. Of those, 3,886 received no penalty. Of the remainder, she said, she sentenced at, or below, the recommended guideline range 90 percent of the time.

For sex offenses, the judge continued, those charges were sentenced at, or below, the guidelines 77 percent of the time.

“Those numbers are comparable to other judges in this division,” she said and “demonstrate that this court does not automatically sentence above the guidelines.”

The judge went on to say that during that same time frame, 226 of her cases were appealed to Superior Court, and 11 were remanded on merit. Of those that were appealed, 77 were for sex offenses, she said, and 74 percent of those were affirmed.

“This court strongly condemns presumptions regarding sentencing practice based on case lists or anecdotal information,” Judge McDaniel said.

She then addressed Bernal’s case specifically.

“What can be more harmful to a young child than to be sexually abused multiple times at a young age?” Judge McDaniel said.

Addressing Superior Court’s specific concerns, Judge McDaniel said guidelines in the aggravated range called for 18 months for unlawful restraint, 12 months for indecent assault and six months for corruption.

Run consecutively, that meant Bernal could be sentenced within the aggravated range to three years, which is what the defense requested.

But Judge McDaniel, who focused on Bernal’s failure to show remorse, went above the guidelines — which she is allowed to do — and ordered him to serve a minimum of two years in prison for each count, all to run consecutively, for a total of at least six years in prison, up to a maximum of 17.

“The court recognizes these sentences are above the guidelines,” she said.

Ms. Vidt, who called the penalty “inappropriate and unreasonable,” argued that her client should not be punished for maintaining his innocence.

“I think an excessive sentence based on retribution is a false sentence,” she said. “I think the disparity between the guidelines and the sentence here cannot be accounted for.

“Why then do we have the guidelines?”