A Cole County man has filed a lawsuit asking he be released from prison and resentenced due to a judicial error.
Larry Welch, now 67, is currently being held in the Algoa Correctional Center for involuntary manslaughter and assault, following his guilty pleas for a 2007 collision that killed Jean Olsen, 45, and her son, Tobias, 17.
Olsen's husband, Eric Olsen, then 41, and daughter, Johanna, then 14, suffered serious injuries in the crash, which occurred on Route C in Russellville.
Welch was sentenced to five years in prison for pleading guilty to two counts of assault - which were to run consecutively to the 15 years for the two manslaughter charges, for a total of 20 years. Those sentences were handed down in August 2008.
When he was sentenced by then-Circuit Judge Richard Callahan, state law required Welch serve at least 85 percent of those sentences.
Welch's attorney, Jay Anielak - a former assistant prosecuting attorney - said Callahan intended that Welch serve an eight-year sentence before becoming eligible for parole and sentenced him accordingly, "based on a mistaken understanding of the law that Welch would be eligible for parole in approximately eight years."
In the lawsuit, Anielak said, "Had Callahan been aware of the requirement that Welch would not be eligible for parole until he had served at least 85 percent of his sentence, Callahan would have sentenced him to a substantially shorter term."
Along with the lawsuit, there is an affidavit from Callahan, who still serves as senior judge in Cole County.
"At the time of sentencing, I was not aware of the requirement that the defendant serve at least 85 percent of any sentence imposed, and it was not my intent to subject the defendant to a 20-year sentence with that requirement," Callahan wrote in the affidavit.
"My intention was that the defendant should serve at least eight years of my 20-year sentence, and the parole board would have the discretion to determine how much of the remainder of the sentence the defendant should serve, considering the statutory factors the parole board is charged with assessing, including public safety," Callahan states in his affidavit. "Had I been aware of the 85 percent requirement, my sentence would have been in the range of 10-12 years."
Anielak is asking Judge Dan Green, who has been assigned the case, to order Welch's release and he be resentenced in Cole County Court.
Anielak noted had Callahan been on the bench at the time of Welch's post-conviction relief hearing in March 2009, he would have discovered Welch's sentence "far exceeded what he had intended and likely would have corrected the error at that time."
Callahan left his position as circuit judge in 2010 after he was appointed to be U.S. attorney for the Eastern District of Missouri. Anielak said it was after Callahan left his U.S. attorney position in March 2017 that he discovered Welch was serving a sentence other than what he originally intended.
A hearing on this case is scheduled before Green in July.