A 20-year-old, learning-disabled man was sentenced to eight years in prison Monday for a 2014 sexual assault case involving an elderly man. But Diontae Smartt could spend less time behind bars if a judge decides to give him jail credit for nearly three years he spent wearing an ankle monitor.
Public defenders argued Smartt, then 17, was on his way to the bus stop near 1131 W. Mississippi Ave. on Sept. 29, 2014, when a neighborhood jogger, then 69, asked to have sex with him. Though prosecutors said Smartt raped the man during this encounter and they tried him as an adult, public defenders countered Smartt was lashing out at a situation he wasn't equipped to handle.
"To the extent that things may have gone bad, he was a 17-year-old kid who lacked the emotional maturity to handle the situation he was in, and lashed out," Erinn O'Leary, one of his public defenders, argued. "He was a child. [The victim] was a grown man. And as I said during trial, we would not be here today if it were not for the fact that [the victim] thought he might have broken a rib. As he testified to on three separate occasions, he would have not called his daughter and gone to the hospital if it were not for that."
Smartt faced eight to 12 years and no possible alternative sentence for his aggravated sexual battery charge, a Class B felony that jurors said he was guilty of during his trial in April. A grand jury originally indicted him on a count of aggravated rape, a more severe Class A felony that carries additional prison time. During Monday's sentencing hearing, prosecutors asked for a 10-year punishment, saying Smartt's sentence should be harsher because of the victim's vulnerability as an elderly man.
Hamilton County Criminal Court Don Poole ultimately rejected that argument, settling on eight years. But he also shot down O'Leary's request that Smartt be considered a "specially mitigated offender" who could receive a seven-year sentence.
"I don't find anything to excuse or justify the criminal conduct," Poole said. "I don't think the age or vulnerability apply."
Poole oversaw two jury trials for Smartt: In August 2017, jurors couldn't unanimously agree on whether Smartt should be convicted of aggravated rape, ultimately resulting in a mistrial. Prosecutors brought the charges against Smartt once more, and this time, at the conclusion of a trial in April, jurors returned the lesser charge of aggravated sexual battery.
Prosecutors used a police interview in which Smartt admitted to penetrating the victim, and pointed to his physical injuries. As a result of this conviction, Smartt will end up on the sex offender registry.
But defenders pointed out that jurors in April believed the incident began as consensual and that things fell apart in the middle, based on them returning a lesser charge. "The jury clearly did not feel comfortable enough to parse out when and physically how things came apart," O'Leary said Monday.
O'Leary also asked Poole to give Smartt jail credit for the nearly three years he spent on an ankle monitor before trial. During that time, O'Leary said, Smartt had to live with other relatives and couldn't return to his home or neighborhood. Poole will rule on that possibility at a later date.
In the meantime, family members and a pre-sentence investigation report described Smartt as a young man with a stuttering problem who resorted to fighting to fend off bullies at Red Bank High School. But he wasn't a bad person, they said, he just needed a second chance.
"In this case, nobody really knows what happened that day," Frankie Smartt, his grandmother, testified Monday. "Don't nobody but the lord our God."
Contact staff writer Zack Peterson at firstname.lastname@example.org or 423-757-6347. Follow him on Twitter @zackpeterson918.