GOSHEN — A judge will decide if two men convicted of armed robbery will finish their sentences outside of prison after an unexpectedly short stay.
Cannon Smith, 21, and Dean Waugh, 34, pleaded guilty in two separate incidents and were both sentenced in 2017. They were each in court Thursday to seek a modification to work release or home detention from Elkhart County Circuit Court Judge Michael Christofeno.
Smith received an eight-year prison sentence, followed by four years on probation, after admitting to an April 1, 2017, armed robbery in a church parking lot. Waugh was sentenced to nine years in prison followed by three years on probation after he admitting to robbing a man at an ATM on June 16, 2016.
Christofeno had told each man at sentencing that if they completed a therapeutic community program in prison and remained free of conduct citations, he would consider modifying their sentence. Both men reported Thursday that they’ve met both requirements, something that Christofeno remarked was much sooner than he planned on.
He said the Indiana Department of Corrections placed Smith and Waugh in a program not long after they entered prison, while his intention, based on information the IDOC gave to judges, was for them to serve more of their time first. Completing the program earned each man a six-month cut to his sentence.
“We’re at a juncture that I’m unhappy with,” Christofeno said during Smith’s hearing. “I wholeheartedly thought that you would serve more than the equivalent of 27 months before I considered a modification.”
Elkhart County Deputy Prosecutor Don Pitzer objected to Smith’s request in even stronger terms. He likewise objected to modifying Waugh’s sentence.
“The state’s position is that you can’t commit this kind of crime in Elkhart County and only serve a two-year sentence. It’s insanity,” Pitzer said. “You get more than that for habitual traffic violation.”
Complicating the question in both cases is a 2018 change in state law that requires the prosecutor to consent when an attorney requests a sentence modification for people convicted of violent crimes. Pitzer said in his understanding, the offer Christofeno made both men was “illegal” because it was outside the authority given to judges.
Christofeno allowed that the order might be “unenforceable under the law” and was subject to an appeal from the state. He said he had studied the issue since Smith first requested a modification in March, and would give a ruling after Pitzer and Smith’s attorney made a series of written arguments over the next two and a half months.
He later told Waugh he would issue a written opinion after about 90 days.