Appeals court upholds Welch sentencing
Thursday, December 23, 2010
Two years after a Cole County grand jury indicted Larry Gene Welch for two counts of involuntary manslaughter after a fatal accident near Russellville, the state court of appeals in Kansas City said he was sentenced properly.
Welch currently is serving a total of 20 years in prison — 15 years each on the two involuntary manslaughter counts, being served at the same time, and five years each on two counts of second-degree assault, also to be served together, but after Welch completes the manslaughter sentences.
Then-Judge Richard Callahan imposed the maximum sentences available for the charges.
All of the charges were filed after a Nov. 4, 2007, crash that killed Jean Olsen, 45, and her son, Tobias Olsen, 17, and seriously injured Johanna Olsen, then 14, and Eric Olsen, 41, father of the two teens and Jean’s husband.
The Highway Patrol reported the accident happened around 11:25 a.m. on a Sunday, as the Olsens were going home after church, westbound on state Route C when Welch’s eastbound truck crossed the center line.
To avoid a head-on collision, Eric Olsen swerved his family’s car into the eastbound lane.
But Welch also swerved back into that lane, hitting the Olsen car on the passenger side, where Jean and Tobias were sitting.
At his July 29, 2008, guilty plea hearing, the appeals court noted, “Welch admitted that his negligence caused the collision and that his blood alcohol content at the time was ‘in excess of what the law presumes to be impaired.’”
But, in his appeal, Welch argued that his attorney — Shane Farrow (although Farrow isn’t named in the appeals court ruling) — “was ineffective for misinforming him that he would have to serve only 40 to 50 percent of his sentence prior to parole eligibility, instead of the statutorily-required 85 percent, which was applicable to his involuntary manslaughter convictions.”
Had he been given better advice, Welch argued, he would have taken the case to trial instead of pleading guilty.
But, the appeals court opinion, written by Presiding Judge James Edward Welsh, noted, quoting from a 2005 state Supreme Court case: “By pleading guilty, Welch ‘waived any claim that counsel was ineffective except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made.’”
The appeals panel also noted that “Welch admitted (at his appeal hearing) that, when he entered his plea, he was aware that the court could have given him consecutive sentences totaling 44 years imprisonment pursuant to the maximum range of punishment for each of his offenses.”
The appeals court noted that Farrow also testified at that hearing, testifying “that he had misread the statute and erroneously advised Welch that he would have to serve approximately 50 percent of his sentence before becoming eligible for parole.”
Even with that admission, the trial court — with Osage County Judge Robert D. Schollmeyer hearing the evidence — “concluded ... that Welch failed to demonstrate that he was prejudiced by counsel’s erroneous advice.”
The appeals court said Welch — now represented by the public defender’s office — didn’t make his case.
Judge Welsh wrote: “The (trial) court found that ... in light of the possible sentence that Welch could have faced compared to the sentence he actually received, Welch’s assertion that he would have proceeded to trial had he known about the 85 percent rule was ‘incredible.’”
Even before this week’s appeals court ruling, Welch has asked the Cole County Circuit Court to reduce his sentence in the case.
A hearing on that request is set for 9 a.m. Jan. 10.