Editor’s note: This article contains information about sexual abuse. Discretion is advised.
MURRAY – A Murray man will serve seven years in jail after pleading guilty, pursuant to North Carolina vs. Alford, to felony sexual abuse charges, following his sentencing hearing in Calloway Circuit Court Thursday.
Jason Malone, 43, was initially arrested in July 2022 and charged with one count of first-degree sexual abuse, a class D felony, and two counts of first-degree sexual abuse, child under 12 years old, a class C felony. According to court documents, after being in therapy for several months, the eldest of the three victims told her counselor that Malone did more than touch her and graphically recounted multiple instances of rape and sodomy.
The new allegations prompted another investigation which resulted in another grand jury indictment in February 2023, this time for first-degree rape and first-degree sodomy, class B and C felonies, respectively.
But Malone’s sentence only pertains to two of the five initial charges. During a mediation in September, Assistant Commonwealth’s Attorney James Burkeen agreed to drop the first-degree sexual abuse charges related to the two younger victims and to amend the rape charge from first- to third-degree.
In exchange, Malone entered an Alford plea to one count of first-degree sexual abuse and one count of third-degree rape, a class D felony. When entering an Alford plea, the defendant does not admit to being guilty of any crimes but concedes that enough evidence exists to be convicted by a jury should the case go to trial.
After Thursday’s sentencing hearing, Malone’s attorney, Kentucky Department of Public Advocacy Murray Trial Office Directing Attorney Cheri Riedel, declined to comment on the case due to the fact that the majority of the information is under seal. She did note that the case has taken longer than normal, in large part due to issues with Malone’s previous counsel.
At a status hearing in January, Riedel advised the court that, despite making several requests, her office had yet to obtain Malone’s file from his previous attorney; therefore, the defense was not ready to proceed in the case at that time. The parties agreed to set the case for trial in early October and schedule a pre-trial conference on Aug. 19.
Instead of holding a pre-trial conference in August, the court heard arguments on two motions filed by Riedel – one to determine the competency of alleged child victims and another requesting the medical and therapy records of the victims be released. At the hearing, she prefaced her arguments on the motions by advising Moore that the case was scheduled for mediation on Sept. 6.
Regarding argument on the motions, Burkeen noted his reservations about releasing those records, “These are dealing with victims’ records. It can’t just be a fishing expedition. If there are reasons that simply aren’t listed in the filing, (I might not object to it).”
Riedel replied that the request is related to records she received from the Cabinet of Health and Family Services. Riedel and Burkeen then approached the bench and spoke with Calloway Circuit Judge Andrea Moore for more than five minutes before returning to their respective podiums. With that, the hearing concluded, and the pretrial conference was continued until after the mediation.
After the hearing, Burkeen talked to The Sentinel about the decision to attempt to mediate the case before going to trial, but first, he explained the process.
Criminal mediations are nonbinding, confidential proceedings and nothing discussed in mediation can be used against someone at trial. Although the negotiations are technically between the defense and the prosecution, in his experience, the process is more productive when the victims are involved.
“The (victims) are typically with us, and they get to hear everything from the mediator’s perspective,” Burkeen explained. “The parties are usually separated, and the mediator does a little shuttle diplomacy, taking offers back and forth.
“The mediator is usually a retired judge who can maybe do a better job of pointing out strengths and weaknesses to both parties. I think the perception there is maybe one side is being kind of unreasonable, then a mediator might be able to say, ‘Hey, I’ve sat on cases where juries did convict for this,’ or ‘This type of testimony can, sometimes, not be as persuasive as you think.’ … To me, the big draw of it is that everybody’s there, prepared, ready. You’re not saying, ‘Well, let me talk to somebody and get back to you next week,’ (because) we’re all there.”
In child sex abuse cases, there are other considerations.
“Nobody likes testifying, especially when you’re underage and have undergone a traumatic experience; if we can get it settled and not have to (put them through) that, it’s typically good,” Burkeen said. “It can also be traumatic if a jury (finds) somebody not guilty – not because they don’t believe the (victim) but because there’s not enough evidence there. That can be tough for a kid to hear.
“So, sometimes you may have victims or victims’ parents who are willing to amend or dismiss some charges in exchange for guilty pleas and not having to go to trial on other ones. So, you can come out of mediation with something different than what was charged.”
At Thursday’s sentencing, the court heard arguments from the parties related to two motions filed by Riedel, both of which were related to the dismissed charges related to the two youngest victims.
While Burkeen did not oppose the first motion requesting that a victim impact statement related to those charges not included in the proceedings, he did oppose defense’s request to remove references to those charges from Malone’s presentence investigation report (PSI), noting it is common for the full charging documents to be included in those reports.
“First of all, he’s not pleading guilty to anything related to those ladies, and they’re not victims, pursuant to the statute,” Riedel argued. “Second of all, it goes against the spirit of the agreement, the negotiated plea done through mediation, to then allow the Court to consider charges that were dismissed.
“Further, it is my concern that, due to the nature of the offense, including these allegations, that it will prejudice him when he is considered by the parole board. … If charges are dismissed, I believe that any reference to them should be stricken from the record as well.”
Moore allowed the request, ruling that Riedel, Burkeen and the Kentucky Department of Corrections Division of Probation and Parole officer could work together to develop a revised narrative.
Before Moore handed down Malone’s sentence, the eldest victim stood bravely at the prosecutor’s podium with her mother by her side and read her victim’s statement.
“Jason, as I am here standing in front of you, I feel nauseous, and I feel disgusting,” she said. “You took away my innocence, which is one thing that I will never be able to get back. … Now, I have to realize monsters are in some people, and I have to be careful who I trust. Although you took everything from me and caused me scarring and painful memories, I forgive you, not to make it OK but to move on and live in peace.”
Three of the initial counts against Malone were dismissed – one count of first-degree sodomy and two counts of first-degree sexual abuse, child less than 12 years old, which are offenses punishable by imprisonment for 10-20 years and 5-10 years, respectively.
Malone’s initial charge of first-degree rape, which carries a penalty of 10-20 years’ incarceration, was amended down to third-degree rape, a charge for which the penalty range is one to five years. Pursuant to the plea agreement which Moore upheld in sentencing, Malone will serve two years on that count.
The penalty range for first-degree sexual abuse is one to five years’ imprisonment. Malone was sentenced to the maximum five-year penalty on that count.
The two sentences are consecutive, which means he will serve a total of seven years; he is not eligible for parole. In addition to incarceration, Malone is subject to five years’ post-incarceration supervision and will be a registered sex offender for the rest of his life.
