Updated: May 20, 2014 at 3:07 pm
DENVER — A Colorado convict sent back to prison after being mistakenly released 90 years early will appeal his sentence, his attorney said Tuesday, claiming it was cruel and unusual punishment to put him back behind bars after he started a family and reformed his life.
The move came a day after Rene Lima-Marin spoke to The Associated Press in his first public comments about the case, saying he was unaware of the error that set him free for six years.
"I never thought that this would happen," he said Monday in a phone interview from prison.
Lima-Marin, now 35, was convicted in 2000 on multiple counts of robbery, kidnapping and burglary after he and another man robbed two Colorado video stores at gunpoint. A judge issued him back-to-back sentences for a total of 98 years.
But a court clerk mistakenly wrote in Lima-Marin's file that the sentences were to run at the same time. Corrections officials depend on that file to determine how much time an inmate should serve. Lima-Marin was released on parole in 2008. He got a job, got married and had a son before authorities realized the mistake in January and sent him back to prison.
"To give a man this false sense of hope and allow him to create a family and give birth to child and believe he could lead a normal life as a father and a husband and to then snatch him away from that is extremely cruel," Orlando attorney Patrick Megaro said.
Megaro also represented Cornealious "Mike" Anderson, a convicted robber who didn't report to prison — despite trying to do so — for 13 years because of a clerical mistake. Anderson was jailed for nearly a year before a Missouri judge freed him this month.
Prosecutors have said that Lima-Marin was fully aware of the clerical error and never notified authorities as he set about building his life. Rich Orman, Arapahoe County senior deputy district attorney, said Tuesday that the "just" sentence would survive an appeal and that Lima-Marin's attorney is "wrong on the law."
"He doesn't understand the factual background, and the courts will uphold the lawful and just minimum sentence that was imposed," said Orman, who was alerted to the clerical error in the case. The state attorney general's office will handle the appeal.
One of Lima-Marin's victims also said he got the sentence he deserved.
Shane Ashurst said Monday in his first public comments about the case that he thought he was going to die when Lima-Marin and another man held him face down at gunpoint during a September 1998 video store robbery in Aurora.
"They put a gun to the back of my head and said, 'This is where you're going to die,'" said Ashurst, who worked at the store and has since moved to Memphis, Tennessee.
"Even though this happened a long time ago, it's not something you ever forget. You're going to live with it the rest of your life, and he should live with it the rest of his life," said Ashurst, who said he suffers flashbacks.
Lima-Marin said he has changed from the foolish 20-year-old he was at the time of the robbery into a dedicated father and regular churchgoer.
He said he asked few questions when his public defender told him in 2001 that he would be serving his sentences concurrently. His attorney at the time told him to withdraw an appeal he had filed, he said.
"I'm in prison, I think I have 98 years, and this woman tells me I have 16," Lima-Marin said of his reaction at the time. "I'm not really concerned with anything other than the fact that I now have 16 years, and I am in amazement."
After Lima-Marin was released, he became active in church. He married his former girlfriend and helped raise her son, who is 7. They had a second son, now 4. His wife, Jasmine Lima-Marin, said both she and her husband believed he had paid his debt to society.
"By putting me back in prison, you are now sentencing three people who have nothing to do with this," Lima-Marin said of his wife and children.
Colorado Public Defender Doug Wilson and other officials in his office did not return telephone calls seeking comment about Lima-Marin's statements.
Orman, the prosecutor, has said Lima-Marin withdrew an early appeal of his sentence and never sought a sentence reduction because he wanted the clerk's error to go unnoticed.
"I find his assertion that he didn't know about the mistake and didn't do whatever he could to make sure no one else found out about it to be extremely dubious, if not downright impossible," Orman said.
Ashurst, the robbery victim, says he has no sympathy for Lima-Marin.
"You pay for your mistake," he said. "I just feel sorry for the wife and kids if they did not know about it."