SHERIDAN — A man sentenced to life in prison for the first-degree murder of Sheridan businessman Robert Ernst in 2009 will now be eligible for parole after 35 years. Dharminder Vir Sen was convicted of three felonies in association with the killing, and will serve one sentence consecutive and another concurrent with the murder conviction.
Wyoming’s 4th Judicial District Court Judge John Fenn announced the sentence at the conclusion of a day-long re-sentencing hearing Thursday. Fenn dictated Sen should serve life according to law for first-degree murder, and a felony conspiracy charge of 20-25 years will run concurrent with that sentence. After he is paroled, Sen will then begin serving another 20-25 years for aggravated burglary.
Sen’s case was sent back to Fenn after a U.S. Supreme Court decision set a new precedent regarding sentencing options for juvenile offenders. Sen was 15 when he committed the home invasion killing of Ernst in August of 2009. Sen was the triggerman who committed the murder with two other accomplices.
Victim’s family asks for max punishment
In accordance with new requirements for individualized sentencing of juvenile offenders, Fenn oversaw a day of testimony from witnesses for both prosecution and defense.
The day’s proceedings opened with a victim impact statement from Bill Hines, the brother of Ernst’s widow. Hines said he feels the surviving victims of the murder have been sentenced to a life of misery and undue punishment. He asked Fenn to hand down the maximum possible sentence, and further requested the judge tell the state penitentiary warden to not allow Sen to have time off for good behavior.
Hines also asked Sen be place in permanent solitary confinement for the duration of his sentence.
“As a former correctional officer, I can tell you it’s for his own good,” Hines said, adding he appreciates the job the court has done so far in dealing with the aftermath of the murder.
Hine’s address at the beginning of the proceedings was a break from routine order of court proceedings, but was allowed by the court.
Hines was the only witness to testify at the hearing, though there were other written victim impact statements submitted to the court.
Prosecutor and Sheridan County Attorney Matt Redle also submitted numerous written exhibits to the court detailing at least five documented behavioral incidents Sen has exhibited while in correctional custody.
Sen’s defending attorney was Patricia Bennett, a public defender based in Cheyenne.
The first defense witness called to testify under oath was Dr.Charles Denison, a forensic psychologist based out of Laramie. Denison was contacted by Sen’s defense to provide psychological assessments in preparation for his re-sentencing.
Denison performed a battery of tests and said Sen was a more willing and active participant for his evaluation than he had been in the past. For instance, an IQ test conducted at the time of the murders estimated Sen’s IQ to be in the high 80s. After spending time with Sen, Denison suspected the IQ would be much higher. A new test revealed Sen’s IQ to be 122, which is well above average and is classified as superior.
Denison explained that while an IQ test can be offset to a lower score by intentional deception, the same test cannot be artificially inflated. He said Sen admitted at the time he took the first test, he was denying his crime and being largely uncooperative with the criminal justice system.
Denison said other tests also showed Sen did not show classic signs of antisocial personality disorder or other forms of psychopathy frequently associated with a high risk of recidivism.
Denison said though an array of indicators suggest Sen has the capacity to understand right from wrong, he still struggles with impulse control and has a history of static factors, including an unstable home life while growing up.
Denison said psychological tests for determination of personality disorders are generally most accurate when performed on a person of 25 or more years old. Sen is 20.
Redle’s cross examination of the defense’s expert witness centered on establishing an acknowledgement of Sen’s criminal history and categorization of his mental capacity.
Sen’s arrest recored began when he was 14 years old, when he was living in Nebraska growing up in what was categorized as a chaotic household. There, he accumulated two felony convictions as a minor for theft of a vehicle and evading police by not pulling over when signaled to do so.
Sen moved to Sheridan in October of 2008. In January of 2009, he arrested for unauthorized use of a vehicle and hit and run. He was arrested again in April of 2009 for shoplifting headphones from Walmart.
Sen has also accumulated a history of infractions during his approximate five years in prison. Redle highlighted two incidents captured via the prison’s video surveillance system that show Sen’s involvement in physical altercations with other inmates. In one incident, another inmate attacked Sen and he fought back. Sen was reprimanded for not walking away. In another incident, Sen attacked another inmate who was in the prison’s computer room. The other inmate tried to escape the attack, but Sen pulled him back in the room to continue the assault. Other documented infractions were more minor, and entailed incidents of stealing and sharing food.
Redle later pointed out that Sen has not had a disciplinary infraction in prison in approximately two years, which coincides loosely with the frame of time when Sen, who previously believed he would die in prison, would have learned he might have a new sentencing hearing and a chance for parole at some point. Redle said the fact Sen had no more recent infractions is indicative of the fact he has the capacity to stay out of trouble if there is an incentive.
Later, defense other defense witnesses testified Sen’s brazen behavior when he first got to the penitentiary were motivated to establish himself there and not be seen as weak among other prisoners.
The discussion of past behavior was an attempt on Redle’s behalf to dislodge Denison’s original sentiments, which seemed to suggest Sen’s personality was not yet fixed and there was a possibility of rehabilitation.
Denison pointed out that Sen’s development will be continually impacted by living in the alternative environment of prison.
The central question of Denison’s cross examination was whether Sen’s could be considered to have a sociopathic personality. Redle maintained that even if a formal diagnosis was not assigned, personality disorders are not required for people to commit crimes.
“We have to be careful not to be Monday morning quarterbacks. The bottom line is this is a horrible, horrible thing that happened,” Denison said, adding the crime was needless.
Sen’s family testifies
Bennett also called three of Sen’s female relatives to testify on his behalf to provide Fenn with context of his personality and family life outside the crime he committed. The witnesses were his mother, Audrey Borgheiinck, his paternal grandmother, Kathryn Heupel and Chandi Noonan, his paternal aunt.
The three witnesses pieced together the story of Sen’s early childhood, when they all described him as a happy, eager-to-please child, regardless of the fact he was being raised by a single mother and the duo frequently moved from house to house due to economic instability.
Sen never had a consistent male role model in his life. His father was chronically unemployed, addicted to heroin and had served a few years in prison in Lincoln, Nebraska. While incarcerated, Sen’s father had been diagnosed with antisocial personality disorder. Sen and his father were not close for several years preceding Sen’s own conviction and incarceration.
Instead, Sen and his mother bounced from home to home, periodically living with relatives. Heupel and Noonan both described instances when they attempted to provide reassurance and stability to Sen, but the family was uprooted each time for various reasons.
“There was a lot of brokenness in his life because of other people and he didn’t know hot to process it and how to deal with it,” said Borgheiinck, who was 16 when Sen was born.
All three witnesses, along with Denison, agreed that Sen and his mother were very close and shared love, but there was no parental mentoring, guidance or boundary setting. Instead, the relationship was more akin of best friends.
When Sen was approximately 12 years old, his mother married and had another child. His father had also remarried and had another child, and Sen found himself feeling as though he didn’t belong in either family. His insecurities began to manifest in behavioral problems and a criminal rap sheet.
After Sen had been convicted of his two felonies in Nebraska, Borgheiinck decided to send Sen to live with family in Sheridan because he had grown beyond her control. He committed the murder after less than a year.
Since his incarceration, Sen’s father died. Huepel recounted how Sen’s father was released from a California jail on a Monday night and was found on a Friday afternoon unconscious on a sidewalk. His heart had already stopped. The man went unidentified until that Sunday when investigators found his cell phone.
Sen was the next of kin legally designated with the decision to take his father off of life support, a decision he made after conference calls to his family from prison. Huepel described Sen’s demeanor at the time of the decision as very mature.
All family members were asked how Sen has changed in the years since his incarceration began, and each described emerging adult behaviors. Heupel said he listens closer and evaluates things more slowly after thinking them over.
“He can’t possibly be the same person he was,” Noonan said. “His reality is so altered I don’t think any of us can imagine it.
“I think it’s obvious from everything that’s been said that he had a really bad card dealt to him,” Borgheiinck said, looking directly at Fenn. “I think that given the same situation with one choice being different here or there, the entire tragic mistake would be prevented. But, he’s not a waste. He’s worth so much more than that. He deserves opportunity and to not be forgotten,” she said.
State recommends life sentence
“Probably the most tragic part of this case is the fact that when we look at the defendant’s background, there is nothing about it that surprises us with this culmination point,” Redle said in closing arguments. “If we were going to draw up a scenario that would take a young boy to early adolescence and then to the penitentiary, it would look very similar to the testimony that we heart today.”
Redle argued new precedents established by the Supreme Court of the United States and reinforced by the Wyoming State Legislature do not prohibit a life sentence for juveniles. His recommendation to Fenn was to leave the sentence unchanged — life without parole.
When Fenn questioned how the state’s sentencing recommendation squared with the requirement for juveniles to have a “meaningful opportunity for release,” Redle said higher courts had not addressed situations that entail multiple felony convictions.
“The perception is there are courts that are attempting to bypass the Miller decision by stacking sentences on minor individuals so it hast the functional equivalent of life without parole,” Redle said, adding that three concurrent sentences would serve the same functionality as a life without parole sentence.
Bennett argued that Fenn should provide a parole opportunity to give Sen hope and motivation to continue his personal development.
Before Fenn announced his sentence, Sen approached the courtroom podium and addressed the court.
“I’m sorry that I’m the reason everyone is here today,” he said. “There’s not a day that goes by that I don’t think of the heinous crime I committed.”
Sen apologized to the Ernst family, and his own family.
Sentence likely to be appealed
Fenn’s sentence reaches beyond the previously anticipated maximal time of 25 years before parole eligibility outlined by Wyoming lawmakers. It is also unique in that even if Sen is granted parole in 35 years, he will still have a remaining sentence to serve for an additional felony charge.
Redle said Sheridan’s court isn’t the only one that is struggling to grasp the implications of the last year’s Supreme Court ruling in Miller v. Alabama, which reset sentencing practices for juvenile offenders. He said the full implications of the decision haven’t been nailed down.
In addition, Redle argued new Wyoming laws issued as a result of the Miller ruling are also subjective.
“The Legislature has spoken in a way that place individualized discretion very broadly with the court,” he said. “I think the court has some leeway to say what the legislature did doesn’t even apply.”
According to the current sentence, Sen will be approximately 51 years old when he will be considered for parole, and then will begin serving the final 20-25 year consecutive sentence.
Redle said it’s very likely this sentence will be appealed, as it is a clear deviation from Wyoming regulation and appears to be muddled intentionally. Though the new sentence appears nonsensical, it serves the function of a request for clarification from higher courts. He said it’s possible that by the time the case is appealed, more precedent will have been laid by higher courts that elaborate on acceptable sentencing practice for juveniles.