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Court orders re-sentencing of Chesterton child molester | #childpredator | #kidsaftey | #childsaftey

The Indiana Court of Appeals has ordered the re-sentencing of a Chesterton man found guilty last year of child molesting after it determined the trial judge unilaterally enhanced the prison term beyond the statutory maximum.

Daniel Orshonsky, 55, was sentenced by Porter Senior Judge Michael Bergerson to 45 years in prison for his level 1 felony child molesting conviction, and an additional year for a misdemeanor intimidation conviction, for a total of 46 years at the Indiana Department of Correction, according to court records.

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Records show Orshonsky used a position of trust to repeatedly compel a young girl to engage in oral sex and he threatened to further abuse the girl if she ever told anyone about the molestation.

Under Indiana law, the sentencing range for a level 1 felony is a fixed term of 20 to 40 years, with an advisory sentence of 30 years in prison.

Bergerson, however, sentenced Orshonsky to a 45-year prison term under a different statute permitting sentences of up to 50 years when a child molesting victim is less than 12 years old at the time of the crime, according to court records.

Records show the victim in this case was less than 12 years old. But the prosecutor did not seek a sentencing enhancement and the appeals court said it was wrong for Bergerson to just add one.

“Trial courts have broad discretion in sentencing matters. However, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury and proven beyond a reasonable doubt,” the appeals court said.

“Here, the state did not seek a sentence enhancement in the charging information, the enhancement was not submitted to the jury, Orshonsky did not waive his right to a jury determination regarding the enhancement and the state did not request the trial court find the statute applicable to Orshonsky. Therefore, Orshonsky’s sentence is an abuse of discretion because the 45-year sentence exceeds the sentencing range for a level 1 felony, and the necessary factual findings for an enhancement were not found by the jury.”

Beyond sentencing, the appeals court rejected Orshonsky’s other claims of abuse of judicial discretion, including Bergerson allowing the prosecutor to pose leading questions to the victim on the witness stand and excluding evidence relating to the reluctance of the mother of the victim to expeditiously release certain medical records.

A re-sentencing hearing has not yet been set. Either Orshonsky or the attorney general’s office still can ask the Indiana Supreme Court to consider reviewing any aspect of the appeals court ruling.

Absent action by the high court, Orshonsky still faces a total prison term of up to 41 years when he is sentenced again.

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