Judge metes out maximum sentence in deadly DUI case

Smith will receive credit for the 14 months she already has served. She also was fined $4,000 on top of being ordered to pay about $20,000 total restitution.

Matish’s reasoning for imposing the fines: Smith won’t be able to get her driver’s license until she pays them. The judge said he doesn’t believe Smith needs to be driving a vehicle due to her actions in this case.

The judge spent much of the hearing deciding whether to accept Smith’s guilty pleas.

Matish was concerned that at her plea hearing in July, Smith had said victim Roscoe Jack Keener had jumped on the hood of the vehicle she was driving and that she then hit the brakes, knocking him off.

The judge put Smith under oath again Tuesday, and she amended her statement to indicate that she had driven the car a ways — rather than stopping immediately — after Keener jumped on the hood. And Smith’s testimony also indicated she had stopped abruptly to get Keener off the car.

That is when he hit his head, suffering injuries that led to his eventual death, Smith testified. She said she left the scene because she panicked.

The judge also was concerned that Keener, 28, of East View, hadn’t died until Nov. 16, well after the Aug. 7, 2012, incident. Matish explained to Smith that leaving the scene with injury is a misdemeanor, punishable only by up to a year in jail, vs. leaving the scene with death, a felony that carries a term of one to five years in prison.

Smith acknowledged she understood and agreed to waive any later right to contest this point.

Smith’s lawyer, Greta Davis, asked the court to run the sentences concurrently. Her witness, Lou Ortenzio, also said Smith is someone who could benefit from substance abuse treatment, including an inpatient program. Ortenzio is director of ministries for the Clarksburg Mission and Central West Virginia representative for the Celebrate Recovery Christ-centered recovery program.

But after hearing from Assistant Prosecutor Laura Pickens and three victims, the judge decided the defendant should receive the maximum term due to the loss of life. Keener had been a son, brother and father, Matish noted. Smith also could have averted the tragedy at several steps along the way as she fueled the alcohol and dope-filled haze that left her with only a partial memory of the events.

One of those speaking to the court, Keener’s mother, brought the defendant to tears when she said this: “I also think she ought to have to look at (what) I had to look at for 3-1/2 months, watching him suffer.”

During her statement, Smith didn’t request mercy.

She said that she would gladly spend the rest of her life in prison if it would bring Keener back to life.

And she warned other substance abusers to get help.

“Addiction, it hurts the people you love,” Smith said. “And, it hurts you.”

Smith initially was indicted on a murder charge. Chances of prosecuting that, however, took a blow when Huntington forensic psychiatrist Dr. Bobby Miller found Smith had diminished capacity at the time of the alleged crime.

Former Assistant Prosecutor Kurt Hall then crafted the plea offer to the DUI with death and leaving the scene with death. Together, the sentences add up to the same sentence Smith would have faced had she been convicted of voluntary manslaughter, according to a statement in court.

As an aside, a drug dealer who sold heroin was sentenced by Matish immediately prior to Smith’s hearing, and got the exact same three to 15 years in prison for one count of delivery of heroin within 1,000 feet of a school.

Smith was sentenced to two to 10 years for felony DUI with death (that’s the maximum for that charge), and the court then tacked on the one to five for the leaving the scene with death conviction.

The leaving the scene charge is officially titled “crashes involving death or personal injuries” and is commonly referred to as Erin’s Law. That’s because West Virginia Code was changed in the wake of a leaving the scene incident in which Erin Keener, a West Virginia nursing student, was killed in Fairmont.

Harrison Deputy Curt Diaz investigated.