A rare motion, known as “suo motu," or “on it's own motion” in law was entered by Judge Martin Prokes on August 13, 2017 postponing the initial hearing scheduled for 3:00 p.m. on September 8, 2017 until 4:00 p.m., “or as soon thereafter as Judge Prokes can arrive,” according to CaseNet.com.
A judge’s own motion to delay a sentencing hearing for Missouri State Highway Patrol Trooper Anthony Piercy who pled guilty to negligent operation of a vessel in the death of 20-year-old Iowa student Brandon Ellingson in 2014 has caused a conflict for the victim’s family.
A rare motion, known as “suo motu," or “on it’s own motion” in law was entered by Judge Martin Prokes on August 13, 2017 postponing the initial hearing scheduled for 3:00 p.m. on September 8, 2017 until 4:00 p.m., “or as soon thereafter as Judge Prokes can arrive,” according to CaseNet.com.
The judge’s motion is effectively an act of authority in the judicial system that is taken without formal prompting from one of the parties involved. In this case, Judge Prokes, “due to his invitation to, and planned attendance at, the Investiture Ceremony of the Honorable W. Brent Powell as a Judge of the Missouri Supreme Court at 2:00 p.m. that day, does continue the sentencing in this case,” according to a clerk’s note.
Craig Ellingson, Brandon’s father, said he understands why Judge Prokes is attending the ceremony, but believes the hearing should be rescheduled as it the same day his son is being honored by his former football team and the community of Clive, Iowa during a game in which Craig has pledged to run the first-down yardage chains for Valley High School.
Ellingson said there's no accurate way to determine when the hearing will start or conclude and thinks it's unreasonable to ask a victim's family to stay after hours in a courtroom out-of-state. When he saw the judge’s order postponing the scheduled hearing, he contacted Special Prosecutor William Cam Seay and asked the attorney to request a continuance, though he is not confident the family will receive one at this point.
The Ellingson family was set to arrive at the Morgan County Courthouse at 2:30 p.m. on that Friday afternoon, a plan Craig had shared with his family, and then they were to fly back to Iowa for the dedication ceremony. Now Craig is unsure if he or anyone from the family will be able to make the hearing at all.
“I’m not going to miss Brandon’s dedication,” Ellingson said in a telephone interview Wednesday night with the Lake Sun. “It doesn’t show much respect for Brandon, me, or my family. We had scheduled this in June. The judge should have postponed it."
Ellingson said if he’s unable to attend he will still have his statement read, but doesn’t understand why he’s essentially being forced to choose from two important events that have entirely different meanings to him and his family.
“It’s par for the course,” he said. “We’ve had to fight for everything we’ve got. It’s unfortunate, that’s just the way it is.”
BACKGROUND TO THE CASE:
Originally charged in December 2015 with the Class C felony of first degree involuntary manslaughter, Anthony C. Piercy, 45, of Versailles pled guilty to the lesser crime of negligent operation of a vessel, a Class B misdemeanor, on June 27, 2017 in Morgan County Circuit Court.
Specifically, Piercy admitted guilt to the criminal negligence of operating a vessel as to cause physical injury to another person. The Class B misdemeanor carries no maximum sentence, but a mandatory probation period of two years and possible six months in detention and/or $500 fine.
The prosecution could ask for Piercy to forfeit his Peace Officer Standard Training (POST) certification for life, barring him from returning to any law enforcement role as part of the plea deal.
Piercy, a former member of the Morgan County R-II School Board who resigned after being arrested in 2015, is currently on unpaid administrative leave from the MSHP. Judge Martin Prokes, assigned to the case in 2016 after Circuit Judge Stan Moore recused himself, ordered a sentencing assessment report to be completed within 60 days for review.
Both Ellingson parents as well as one of Brandon’s grandparents are expected to speak during the hearing and Piercy will also have the right to speak. Prokes has limited the family’s testimony to the emotional, physical and financial toll the death of their son and grandson has had on them.
On May 31, 2014, at approximately 5:23 p.m., Brandon Ellingson and several friends from Iowa were pulled over by Piercy as they were leaving Coconuts Bar & Grill in Gravois Mills in Craig’s boat. Piercy pulled the vessel over regarding an expired registration tag and a report of littering.
Brandon, who was studying business administration at Arizona State University with plans to join his father’s business upon graduation, was in town for summer vacation as the family had done for years.
Piercy, the lone officer on the patrol vessel, quickly established probable cause to place Ellingson under arrest in MSHP custody on suspicion of boating while intoxicated and began transporting Brandon to a stationary office near the H. Toads complex, a couple miles away from the arrest location for a breathalyzer test.
Toxicology reports show Ellingson had a blood alcohol content of 0.268 at the time of his death, though the autopsy was conducted some 16 hours after his body had been submerged underwater. The report also showed traces of cocaine in his system.
“We never denied the fact he was intoxicated, he was under the influence of alcohol, and the coroner would testify that cocaine was discovered in his system,” Seay said.
The longtime road deputy, who had recently been assigned to the Water Patrol Division, improperly placed a Type-III life-jacket on Ellingson after handcuffing his arms behind his back. Patrol had recommended using Type I or II life-jackets.
Traveling up to speeds of 43.7 miles per hour, Ellingson was ejected after striking a wake, at which time Piercy slowed the vessel and attempted to grab him using his hands and then a pole. When Ellingson’s life-jacket slipped off, Piercy jumped in and attempted to rescue him, grabbing him at one point but being unable to hold on to Brandon before he sank and Piercy returned to the surface, exhausted from the struggle.
Brandon’s body was located the next day in approximately 80 feet of water near the 3.5-mile marker near Mill Creek. In an audio and video recording with a supervisor taken on another MSHP vessel approximately an hour after the incident, Piercy was apparently concerned with how he handled the incident.
Piercy said the video camera was recording, but had no SD card and therefore was not saving any data. He would later give different versions of when he realized the issue.
“Well I’m sorry I probably did a bunch of things wrong there,” Piercy said at one point. “I guess keep me posted on if I’m going to be employed or what’s going on.”
The plea deal and punishment of Piercy hinges on whether or not prison time is recommended in the sentencing assessment. An agreed-to caveat in the plea bargain means Piercy can withdraw his guilty plea and proceed to trial if more than probation is recommended.