A merit brief filed last month in the appeal of Ely R. Serna contends the trial court relied on personal research of a medication used by the Serna instead of expert testimony when coming to a ruling in the case last spring.
Serna, 19, received a maximum prison sentence of 23 1/2 years in May 2018 for the Jan. 20, 2017, shooting at West Liberty-Salem, during which two students were injured. Prior to sentencing, Serna pleaded guilty to one count each of attempted murder with a three-year firearm specification, felonious assault and inducing panic in April 2018.
A notice of appeal was filed on May 17, 2018.
A merit brief was filed on behalf of Serna by attorney Stephen Hardwick on Jan. 31.
Within the brief, Hardwick asks the appeals court to reverse the sentence and remand the case for a new sentencing hearing, arguing that Judge Nick Selvaggio erred by conducting his own research into the effects of Vyvanse instead of relying on expert testimony and by failing to consider Serna’s age and age-related characteristics as mitigating factors.
Within the Champaign County Common Pleas Court’s sentencing entry, Selvaggio notes Serna admitted to a pre-sentence investigator that he used Vyvanse four times. The entry notes the drug is used to treat patients with attention deficit/hyperactivity disorder.
Selvaggio noted Serna admitted to one mental health evaluator that he attended a wrestling meet on the Saturday prior to the shooting, which occurred on a Friday, and admitted he obtained the drug from a friend on Saturday and used it the Saturday and Monday prior to the shooting.
Within the court’s entry, Selvaggio cites the drug’s website when discussing potential side effects of using the drug.
Hardwick contended five expert witnesses and the court agreed Serna, who was 17 during the shooting, suffered from major depression when he committed the shooting.
“In an otherwise thorough sentencing hearing, the trial court veered significantly off course when it conducted its own pharmacological research using a drug company’s promotional material,” Hardwick states. “In its entry, the trial court stated that it based its findings on the drug Vyvanse, which Ely admitted taking a total of four or five times, including once almost a week before the shooting, on the court’s review of Vyvanse.com, a website created by (the maker of Vyvanse).
“Based on that promotional material, the trial court speculated that Ely took the drug much more shortly before the shooting, and that the drug contributed to his psychosis. None of the experts agreed.”
Hardwick further contends the court improperly relied on a drug maker’s promotional materials instead of seeking additional expert assistance.
Regarding age, Hardwick contends the court failed to consider Serna’s youth before sentencing him to a maximum prison term.
A magistrate’s order filed on Feb. 8 notes that on the same day the brief was filed, Hardwick requested the appeal to be scheduled for oral argument. The magistrate stated the case will be set for oral argument at the earliest date available after all briefs have been filed.
Nick Walton can be reached at 937-652-1331 Ext. 1777.