CONCORD, N.H. — Lawyers for a man sentenced to more than seven years in prison for sexually assaulting a 7-year-old girl are hoping he can make a second bid to have his sentence reconsidered, after a judge went back and forth on the matter.
Joshua Baud, 33, of Wakefield, was sentenced in September 2014 to 7½ years in connection with the 2006 assault. But his case sparked outrage and set in motion a sentencing saga after Carroll County Superior Court Judge David Garfunkel days later said he had reconsidered and wanted to impose a lighter sentence of six years.
“After much soul searching,” he said, he decided he had not balanced the goals of sentencing: punishment, deterrence and rehabilitation.
Prosecutors strenuously objected and, two months later, Garfunkel ruled he didn’t have the authority to revisit the sentence under the court’s rules, prompting the first state Supreme Court challenge by Baud’s lawyers. The justices ruled in December 2015 that he did have the authority to revisit a sentence if he had overlooked or misunderstood points of law or fact.
Garfunkel revisited the case and ruled last month that he did not overlook any of Bard’s sentencing arguments, including his relatively minor criminal record, and that the crime involved a single act of digital penetration. He let the original sentence stand.
Baud’s lawyers are now back before the Supreme Court, arguing a judge has broad authority to reconsider a sentence beyond court rules that require a mistaken application of laws or facts. The Supreme Court’s ruling dealt only with a judge’s discretion under the court rule, which is narrowly defined.
“There’s a whole other question the Supreme Court didn’t address in the initial appeal, which is whether a judge has broader power to reconsider a sentence,” attorney David Rothstein, one of Baud’s lawyers, said last week.
Rothstein said that if they prevail in this second challenge, it will present “an interesting twist” in the case. Garfunkel, now 70, has since retired.
Judicial officials confirmed recently that Garfunkel could serve as a referee or a mediator but, because of his retirement, could not preside over a criminal trial or sentencing.
When Garfunkel’s intent to reduce the sentence was still on the table, the victim’s mother said her daughter was distraught and had flashbacks to the assault by someone who had been a trusted family friend.
Lynda Ruel, director of the attorney general’s office of victim and witness assistance, said she couldn’t comment on how the mother and daughter are dealing with the latest appeal because the cause is pending.
The appeal is in its early stages and lawyers on both sides have yet to file their briefs, said Sean Locke, the attorney who is representing the state.
“It’s hard to say at this point how long the process will take,” Locke said.