The News Courier in Athens, Alabama

December 16, 2013

UPDATED: Judge ordered to resentence Athens man convicted of rape

By Jean Cole

— The Alabama Criminal Court of Appeals has ordered a Limestone County judge to resentence a man convicted of rape, saying the judge erred.

A sentencing date has not yet been set for Austin Smith Clem, 25, of Athens, who was convicted in September of raping a family friend, babysitter and neighbor when she was 14 and 18.

Although Circuit Judge James Woodroof Jr. had already agreed to resentence Clem if the appeals court so ordered, the appeals court ruling issued Saturday makes it official.

Clem's sentence in October on first-degree rape sparked an outcry from the victim, prosecutors and others because it included no jail time.

Woodroof had sentenced Clem to serve 20 years in prison on the first-degree-rape conviction but he ordered the sentence "split" so the jail time was suspended and Clem would serve two years in the Limestone County Community Corrections Program - a supervised probation program that allows participants to maintain a job and go home every day. The community corrections stint was to be followed by three years of supervised probation. On each of the second-degree rape convictions, Woodroof sentenced Clem to 10 years in prison. Those sentences were also "split," and Clem was ordered to serve two years in community corrections followed by three years of supervised probation on each conviction. He was also ordered to register as a convicted sex offender.

During the sentencing hearing, the prosecution had argued that Clem's 20-year sentence was illegal because the two years of incarceration was less than that mandated by Alabama's split sentence act. They argued it should be at least three years. The prosecution also argued that a defendant convicted of first-degree rape was barred from participating in a community corrections program.

Prosecutors also objected to the sentence because Deputy District Attorney Jim Ayers Jr. had noted during the hearing that Clem had a juvenile record of sodomy involving a boy.

Although Woodroof had said during the sentencing hearing that he would resentence Clem if he determined his sentence violated the law, a few days later District Attorney Brian Jones filed a request for a writ of mandamus (writ of mandate) from the Alabama Court of Criminal Appeals. Jones said he proceeded because the judge's original sentencing order was filed the next day with the Circuit Clerk's office and because he only had a seven-day window to file with the appeals court.

In its decision Friday, the appeals court wrote, "We note that this case is correctly before this court by way of an extraordinary petition for a writ of mandamus. The state may challenge an illegal sentence by filing a mandamus petition. In reply to this mandamus petition, Judge Woodroof has responded: "The respondent herein stipulates to a resentencing in the above-styled matter."

Respect for judge

The district attorney declined to speculate on what evidence, or lack of evidence, prompted Woodroof to issue a light sentence on the first-degree rape, which occurred when the victim was 18.

Jones said Woodroof is a good judge but he believes he was simply having a bad day the day he sentenced Clem.

He pointed out that Woodroof had sentenced another convicted rapist, Austin Nichols Jr., to 90 years in prison in May for raping his 14-year-old granddaughter.

During closing arguments at the trial, defense attorney Dan Totten had characterized the victim as " a woman scorned" and said there was no evidence of forcible rape when the victim was 18, including no scratches or bruises and no DNA.