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Papa John#039;s robber gets 12 years in resentencing

Magic words, but the same sentence.

Brock Smith, the Ironton man who was convicted last year of holding up a Papa John's pizza store, will indeed spend nine years in prison on an armed robbery charge and three years for a firearms charge and those two terms will be served consecutively - meaning 12 years total in prison. He will also have to pay a $20,000 fine.

Following an appeals court ruling that mandated resentencing, Lawrence County Common Pleas Court Judge Frank McCown again Wednesday gave Smith the maximum sentence allowed under the law.

The judge said he had erred the first time he sentenced Smith because he did not use specific language required by law in sentencing Smith to the maximum term rather than the minimum term in prison.

McCown read from the 15-page Fourth District Court of Appeals ruling handed down last week.

The ruling stated the higher court allowed lower courts to sentence defendants to the maximum term so long as the court "finds on the record" that the "shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."

"There are certain magic words that need to be said in sentencing," McCown said.

The court of appeals noted in its ruling last week that wording during sentencing is paramount in cases such as these although the statute is somewhat vague in places.

Smith's attorney, David Reid Dillon, argued that Smith should not get the maximum sentence because he was not a hardened criminal and because the crime did not involve injury to any of the victims.

"There was no physical harm to anyone," Dillon said. "There has been no lasting emotional harm, no great financial loss to the store, my client has no felony record, there was any indication of viciousness… a minimum sentence is appropriate."

Dillon argued that the crux of the appeal was that Smith should not have been sentenced to the maximum sentence because he had not ever served time in prison, was not in prison at the time of the hold up and that no one had ever proven that the seriousness of the crime would have been demeaned by a lesser sentence.

But Assistant Lawrence County Prosecutor Mack Anderson disagreed.

"He entered the back door of the building. … He had a sawed-off shotgun and he ordered employees at gunpoint to go to where the money was kept and then he ordered the employees to get down on their knees," Anderson said.

Anderson also cited Smith's lengthy history of misdemeanor crimes - a list that includes DUI, menacing and disorderly conduct as evidence that Smith deserved a long time behind bars to think about his crime.

"The defendant has shown no remorse, he won't admit to what he did in spite of overwhelming evidence," Anderson said. "I feel a sentence more toward the maximum. … is appropriate given the facts and circumstances of the case."

Asked if he had anything to say, Smith simply said, "I'm sorry all this happened."

McCown agreed with Anderson that the young people who were in the store at the time of the hold up suffered severe mental distress because of the incident.

McCown also said Smith's long record of misdemeanor crimes shows a record of criminal behavior.

"The single term does not adequately reflect the seriousness of his conduct," McCown said.

Dillon said he would appeal the sentence again. Smith will be back in court in two weeks for a pretrial conference since the court of appeals overturned his felonious assault conviction and ordered a new trial.

Smith's mother, Tina Nelson, who attended the sentencing objected to the harsh sentence for what she maintained was the vilification of her child because he is black.

"They're trying to make my son look like a serial killer," she said. "Yes, he got caught DUI but these are things kids do. Some kids have a more extensive record than my son. … The crime just doesn't fit the sentence."