An Athens man convicted of raping a babysitter and family friend still will serve no additional jail time under a revised sentenced filed today in Limestone County Circuit Court.
As ordered by the Alabama Court of Criminal Appeals, Circuit Judge James Woodroof Jr. agreed to resentence Austin Smith Clem on first-degree rape and two counts of second-degree rape.
Woodroof filed his revised order Monday, giving Clem 15 years for first-degree rape and two 10-year sentences for second-degree rape — a total of 35 years. However, the judge suspended the prison time and gave Clem credit for time already served in the county jail — 66 days. He also ordered Clem to serve 5 years of supervised probation on each count of rape. If he violates the terms of probation, the judge could reinstate the 35 years of prison time. Clem was also ordered to register as a convicted sex offender, pay $1,631 in restitution and a $750 bail bond fee. He must also maintain a job, complete counseling, have no contact with the victim or her family, pay court-ordered fees related to probation and comply with the other conditions of his probation order.
The revised sentence reduces Clem's sentence on first-degree rape from 20 to 15 years in prison, which the district attorney immediately opposed.
After seeing Woodroof's new sentence for Clem on Monday, District Attorney Brian Jones filed an appeal to the Circuit Court, arguing the revised sentence is also illegal. He said Woodroof should not have revised the sentence for rape first from 20 down to 15 years but, rather, revise only the number of years in his original split of the first-degree rape sentence. Woodroof had split the 20 years to two, and the appeals court agreed with the prosecution that the split should be three to five years and that Woodroof erred in allowing Clem to serve his time in community corrections — a local supervised probation program for low-level offenders that would allow him to live at home and work.
Jones has said he believes Clem should serve prison time.
In the brief filed by Jones Monday, he wrote, “…when a trail court resentences a defendant after a portion of the original sentence is determined to be illegal, the court must cure the defective portion of the sentence, but may not change the portions of the initial sentence that are otherwise valid.”
Jones also wrote, “Because the 20-year sentence was valid in this case … the court may not change it… Consequently, this court’s amended sentence order is unlawful because it altered the valid 20-year sentence.”
He asks the court to set aside the amended sentence and resentence Clem.
Following a three-day trial in September, a Limestone County jury convicted Clem on three counts of rape involving Courtney Andrews, a family friend, babysitter and neighbor, who was ages 14 and 18 when the rapes occurred.