Kulchar re-sentenced on tampering

A former Ohio University student, convicted of evidence tampering in connection with an alleged rape and kidnapping for which he was acquitted, had to sit through his sentencing a second time Monday.

Exactly as during his first sentencing Dec. 16, 21-year-old Matthew Kulchar received a three-year prison sentence, but Athens County Common Pleas Judge Michael Ward allowed him to remain free on bond while he appeals his conviction.

One issue that may figure in the appeal is the reason Kulchar had to be brought back for a replay of his first sentencing.

On that occasion, Ward apparently forgot to offer Kulchar a chance to speak before the judge passed sentence.

County Assistant Prosecutor Rob Driscoll suggested the court could easily remedy the oversight by simply giving Kulchar the opportunity to speak and then resentencing him then and there.

Defense attorney K. Robert Toy, however, said his client would not take the offer to make a comment, and would let the sentence stand.

Since then, apparently, Ward said Monday, he has seen case law suggesting "that it would be the best policy to go ahead and resentence Mr. Kulchar after vacating the sentence which had been given earlier."

Once again Monday, Kulchar chose not to speak before sentencing. Once again, Driscoll argued for the maximum sentence "“ five years in prison and a $10,000 fine. Once again, Toy asked for no prison time. And once again, Ward gave three years and continued bond.

Kulchar was accused of having held a female OU student in her dormitory room and repeatedly raping her in September 2008. He admitted the sex, but said it was consensual, and a jury acquitted him of rape and kidnapping charges.

The evidence-tampering charge stemmed from the fact that while in OU Police custody, Kulchar text-messaged his roommate to have him dispose of a pair of boxer shorts Kulchar had worn during the sexual encounter.

The failure to get a chance to speak before sentencing may be brought up in Kulchar's appeal (though this would apply only to his sentence, not his conviction).

The main issue, however, Toy has suggested, will be whether Kulchar can be held accountable for evidence tampering, given that the actual disposal of his underwear was done by someone else.

Driscoll has suggested that Kulchar can be held responsible for his roommate's act, because he directed him to perform it.