Attorney still seeks resentencing for man accused of sex offense

Wearing a black polo shirt and light grey pants, Zach Anderson sat hunched forward on a bench with his elbows resting on his knees.

As cameras swung in his direction and began clicking in the quiet Niles courtroom, the 19-year-old Elkhart, Indiana, man cracked his knuckles as he waited for the judge to call his case Wednesday afternoon.

At the time, Anderson had no idea his wait was going to be much longer than he and his family hoped.

In April, Anderson was sentenced to 90 days in jail and labeled as a sex offender for having consensual sex with a 14-year-old Niles girl who lied about her age.

Berrien County Judge Dennis Wiley — the same man who handed down the sentence — was about hear a motion filed on Anderson’s behalf by attorney Scott Grabel to have the case re-sentenced before a different judge.

Zach’s father, Lester, and mother, Amanda, sat beside him. One row back, a man sat wearing a yellow T-shirt reading “Justice 4 Zach.”

There were two television cameras and a handful of reporters in the room — a reflection of the case gaining national attention.

Zach’s story appeared on CBS national news and CNN earlier this week and was featured in the New York Times. It has sparked a debate about the fairness of the sex offender registry and other issues in cases like Zach’s.

When Wiley finally called Zach forward, his attorney argued that the case should be re-sentenced by a new judge.

Grabel’s reasoning was that Assistant Prosecutor Jerry Vigansky had violated the terms of Zach’s plea agreement when Vigansky recommended that the judge not sentence Zach under the Holmes Youthful Trainee Act — a program that allows young offenders an opportunity to erase the conviction if they successfully complete a probationary term.

Grabel pointed out that, in exchange for Zach’s guilty plea, the prosecutor agreed not to oppose or recommend HYTA during sentencing.

According to court transcripts taken from Zach’s sentencing hearing, Vigansky referenced similar cases that had come before Wiley in the past — cases in which Wiley had not granted HYTA. Vigansky said during the April 27 hearing that “they all should probably be treated the same way. There is no difference between this gentleman, between the two that have been before this court, between the victims and the other victims in this — in the community.”

Grabel argued Wednesday that Vigansky’s statements amounted to a violation of the plea agreement.

“He wanted you to deny HYTA like you did the three other people,” Grabel told the judge. “ (Zach) did not get the benefit of his (plea) bargain.”

Wiley agreed that Vigansky’s words “went beyond what had been agreed to by (both) parties” in the plea agreement.

However, Wiley said he could not rule on the motion to re-sentence until he determined if another case — The People of the State Of Michigan vs. Thomas Swirles — applied to this matter.

Wiley told both parties he would issue his opinion as soon as possible.

After the court hearing, Grabel explained the Swirles case. He said the judge essentially must determine if what Vigansky said constituted an “obvious error” since Zach’s original defense attorney (John Gardiner) did not object to Vigansky’s statements during the sentencing hearing.

Grabel said, in his opinion, Vigansky’s error was obvious and that he hopes the judge will rule within the week.

If Wiley does grant re-sentencing, Zach’s case will go before a randomly assigned judge in Berrien County.

Zach’s parents said they would continue to fight for their son’s freedom no matter what happens.

“We are patient people but we want our son’s life back,” Lester said. “We are ready to move on.”

The victim and the victim’s family have all indicated they support Zach’s cause.

Zach’s family has set a Facebook page — Justice 4 Zach Anderson, Elkhart — where people can follow the progress of the case and help out.