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The Springfield Township man convicted of taking a loaded gun into a retirement village in 2009 where he assaulted his ex-wife and held her hostage will return to Lucas County Common Pleas Court to be resentenced, the appellate court has ruled.
But it is unclear whether Michael Swiergosz will receive a different sentence.
Swiergosz, 49, is incarcerated at the Toledo Correctional Institution where he was sentenced in February, 2010, to serve 44 years. He had been found guilty by a jury the month before on multiple rape, kidnapping, and assault charges as well as felonious assault in a related case.
The Sixth District Court of Appeals issued an opinion Friday that said although Swiergosz guilty verdicts remain intact, his case would be remanded to common pleas court for resentencing.
Specifically, the appellate court opined that Swiergosz was entitled to a “merger analysis” at his sentencing during which the judge would determine if any of the counts were “allied offenses” and therefore the sentences should be merged.
“Although a defendant may have a single goal, if he commits multiple offenses, or even the same offense, against different victims during the same course of conduct, the offenses are not allied and could be separately punished,” the court noted. “Yet where the defendant’s conduct is such that a single act could lead to the commission of separately defined offenses, but those separate offenses were committed with a state of mind to commit only one act, the offenses are allied and must be merged for sentencing.”
The court further noted that no merger analysis was done in Swiergosz’s case. “That determination remains to be made,” the opinion said.
A common pleas court jury found Swiergosz guilty Jan. 28, 2010, of three counts of kidnapping, one count of felonious assault, two counts of rape, one count of aggravated burglary, all with gun specifications, as well as one count of having a weapon while under indictment for a felony.
Nine witnesses testified during his trial, including Swiergosz’s ex-wife and Swiergosz himself.
The evidence showed Siergosz armed himself with a stolen 9mm pistol and went to the retirement community where his estranged wife worked.
Using the gun, he forced an employee to lure the woman to him, and hit her head with a tire iron. He then bound and raped her. Swiergosz released his hostage after more than five hours and gave himself up about 30 minutes later.
The couple, who had been married 14 years before their divorce in 2009, have four children.
The case was presided over by retired Judge Denise Ann Dartt. Judge Dean Mandros, who took over her docket, noted that he would have to recuse himself from the resentencing because he was the lead prosecutor on the case in 2010.
“The Court of Appeals has remanded the case back to the trial court for a hearing to determine whether any of the convicted offenses should be deemed allied offenses,” Judge Mandros said. “Since I inherited the docket of Judge Dartt, who was the judge on the case, I clearly cannot preside over this hearing and another judge will have to preside.”
The case, he added, likely will be assigned to a visiting judge. No hearing date has been set.
The issue was one of four errors claimed by Swiergosz in his appeal. The appellate court rejected claims of prosecutorial misconduct, attorney negligence, and court error when failing to state whether the sentences in two counts were to run consecutively or concurrently.
The case was decided by Judge Mark Pietrykowski, JudgeThomas Osowik, and Judge Stephen Yarbrough.
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