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The young man convicted in the 2004 shooting deaths of his father, stepmother and step-sister on Sam Donaldson's ranch will not face an adult sentence for his crimes. The courtroom was packed Thursday morning when 16-year-old Cody Posey arrived to hear his sentence. The moment the teen stepped into the courtroom, the only sound heard was a ringing silence.
Posey, clad in black pants and button-down shirt, looking pale and nervous, stood next to his attorney, Gary Mitchell, waiting for Judge James Waylon Counts to enter the courtroom.
Counts himself appeared pale and serious as he entered the courtroom accompanied by an Otero County Sheriff's Office deputy. As he began his explanation of the sentencing, Counts explained to the courtroom that while many people believe judges make decisions base on their personal beliefs, that is not the case. "The comments I've heard since beginning this case, in fact, since I've become a judge, is 'I wouldn't want your job,'" Counts said. "I take that to mean that the decisions I have to make are ... an exercise in unrestrained discretion without any guidance from the law. But I have sworn an oath to know, follow and apply the law. The law of the state of New Mexico and not my personal whims or the tide of public opinion is the basis of my decision today." On the defense side of the gallery, many in the audience wore blue ribbons, which have become a symbol of support for the young man. On the prosecution side, family members of the victims, Delbert Paul Posey, Tryone Posey and Marilea Schmid, stood calm and composed. After going through the factors that would allow him to sentence Posey to an adult sanction for the crimes, Counts announced that he would not go with an adult sentence, because he found that Posey is amenable to rehabilitation. The state, said Counts, did not prove that Posey suffers from an anti-social disorder or conduct disorder. He found, however, the defense was able to prove that Posey did suffer from post-traumatic stress disorder and depression. "The court finds that the weight of the evidence received leads to the conclusion that the respondent (Posey) at the time of the offenses suffered from post-traumatic stress disorder and depression," said Counts. "Since respondent's detention, respondent has continued to suffer from PTSD. As a result of these findings, Counts sentenced Posey to the custody of the state's Children, Youth and Families Division until he reaches the age of 21. At those words, Posey's supporters erupted in restrained exaltation, while those on the prosecution side appeared stunned. When given the chance to make a statement, Children's Court Prosecutor Sandra Grisham asked Counts to modify his judgment. "Your honor, under the law you can only say 'until age 21 unless earlier discharged,'" said Grisham. "And he will be eligible for parole after 40 days." Grisham then suggested that Counts sentence Posey to an adult sentence on the first degree murder charge, but then probate that sentence. This would allow the state to keep an eye on Posey for five years after Posey reaches the age of 21, Grisham said. Counts declined that offer. "The court has announced its finding," said Counts, "and it stands by its sentence." The court was then adjourned. Posey's supporters cheered and applauded until asked to calm down by sheriff's deputies. Counts maintained his seat at the bench throughout the celebrations, finishing up his paperwork, then quietly got up and went into his office without speaking further. But as Posey left the courtroom, his supporters let the boy know they still stood with him. "We love you, Cody," they called out, as Posey walked out to begin his juvenile sentence. The families of Delbert, Tryone and Marilea simply walked out of the court room, silent and stunned.
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