Ohio County Circuit Judge David Sims allowed a conditional plea agreement Wednesday in a malicious assault case that may not be resolved for two years.
Ohio County Assistant Prosecutor Brian Ghaphery and defense attorney David Jividen drafted the agreement calling for Thomas Auten, 23, of Wheeling to plead guilty to malicious assault and be sentenced to 2-10 years in prison. However, the agreement also asked the court not to accept the deal for three years.
Auten's charge stems from a May 5 altercation at the intersection of National Road and W.Va. 88 near Sheetz. Ghaphery said Auten was stopped at a red light when he and the victim exchanged words. As the victim approached Auten's vehicle, Auten pulled out a souvenir baseball bat and struck the victim in the head, causing concussion-like symptoms.
Photo by Fred Connors - Thomas Auten sits with his attorney David Jividen while entering a conditional plea before Ohio County Circuit Judge David Sims on Wednesday on a charge of malicious assault.
At Wednesday's hearing, attorneys presented terms of the agreement to Sims and asked the judge to defer acceptance of the deal pending Auten's successful completion of 200 hours of community service over a three year probationary period. Upon completion of those elements, Auten will be allowed to return to court and enter a new plea to a misdemeanor charge of battery with credit for time served.
The agreement also states if Auten fails to complete the required community service or commits any violation of his bond, his plea will be accepted at that time and the 2-10 year sentence will be imposed immediately.
Sims altered the terms of the deal to say the community service must be served over two years rather than three.
"It takes a long time to work off 200 hours of community service," Sims told Auten. "If you get it done, I will reconsider your situation."
Sims said he lowered the probation time to two years because the case will remain on the court docket until it is resolved.