A tutor convicted of having sex with a Catholic Central High School student deserves a new hearing on her 8 to 25-year prison sentence, the Court of Appeals ruled today.
The Appeals Court upheld Abigail Marie Simon’s November 2014 conviction on three counts of first-degree criminal sexual conduct, but granted a new hearing to determine if facts used to determine her sentence were proper.
Simon, then 33, was convicted of having sex with a 15-year-old sophomore student at Catholic Central High School, where she worked as an academic advisor.
The 11-day trial garnered national attention; Simon said she was intimidated by the boy and argued the sex was involuntary. She’s being held at the Huron Valley Women’s Complex in Ypsilanti and is not eligible for release until 2022.
Simon raised several issues in her appeal, including a lifetime of electronic monitoring once she gets out of prison.
In a 13-page decision, the Appeals Court struck down her arguments, but approved a hearing on her sentence based on a July, 2015 Michigan Supreme Court decision that says sentencing guidelines mandating prison terms are unconstitutional.
Under the ruling, guidelines can only be used in an advisory capacity.
if Kent County Circuit Judge Paul Sullivan decides re-sentencing is warranted, it could result in a shorter term or no change. In some cases, defendants have seen their sentence increased.
Sentencing guidelines in Simon’s case called for a longer term because she continued to have contact with the boy through a Twitter account after being told not to do so once the investigation got underway.
The contact included a June 12, 2013 email in which Simon wrote “I love you. Tell your mom you need this gone now. I need to be with you.’’
“They sent private messages to each other over Twitter,’’ justices wrote. “They also sent email messages and talked on the telephone. (Simon) tried to keep this secret, by, for example, questioning the victim’s use of telephones that could be tapped by police.’’
Justices also noted that Simon told the boy to “take steps to stop the investigation.’’
Simon contends the boy raped her, telling jurors if she appeased his sexual appetite, he would not assault her. Her actions were involuntary because the boy “physically overcame her and forced her to submit to sexual conduct against her will,’’ court records show.
Simon also contends Sullivan gave inaccurate and misleading instructions to the jury on whether the sex was committed voluntarily or involuntary. That argument was rejected by the Court of Appeals.
Simon’s appeal contends she was given a harsher sentence because she opted to take the case to trial rather than accept a plea deal from the Kent County Prosecutor’s Office. That too was shot down.
Justices in particular noted Sullivan’s comments that he was not going to sentence Simon “in any way, shape or form because she went to trial other than things I might have learned as a result of the trial itself.’’
Simon also took exception to being placed on electronic monitoring for life, saying it is unconstitutional. That too was struck down.
Simon last August lost a bid for a new trial, unsuccessfully arguing the judge’s instruction to jurors undercut her defense that the sex was involuntary.