A Sciotoville man will be re-sentenced for a 2005 rape of a Lawrence County girl, but an Ironton man serving time for involuntary manslaughter will not see any relief from his lengthy prison term.

The Ohio Fourth District Court of Appeals has overturned the five-year prison sentence for Christopher Spence, who was found guilty in September 2005 for the rape of a friend’s then-10-year-old daughter. In sentencing him, the late Judge Frank McCown opted to impose the five-year sentence, contending that a lesser prison term would “demean the seriousness of the offense and would not adequately protect the public.”

The Fourth District judges — Matthew McFarland, Peter Abele and William Harsha — agreed that the statutory guidelines used to sentence Spence to the longer prison term were ruled unconstitutional by the Ohio Supreme Court in 2006, following rulings from the U.S. Supreme Court. This has affected other cases locally and statewide.

“If a sentence is arguably based on an unconstitutional statute, the proper remedy is to vacate that sentence and remand the case for re-sentencing,” the appellate judges wrote in their decision. “This applies to all cases pending on direct review at the time (State of Ohio v. Foster) was decided.”

The Foster case struck down some of the state’s statutory guidelines regarding sentencing.

However, the Fourth District rejected a claim by Jeffrey Holton, of Ironton, that he should be re-sentenced for the 2001 death of his girlfriend, Misty Malone.

The appeals court ruled Holton had not filed his request for post-conviction relief in a timely manner (it was filed in 2006) and therefore they are unable to grant it.

“Generally, if there is no direct appeal of the conviction or sentence, the defendant must file a petition for post-conviction relief no later than 180 days after the expiration of the time for filing an appeal,” judges wrote in their decision.

Holton was arrested in August 2001 and charged with murder in the death of Malone, who was found shot to death at the Hog Run home they shared. In early 2002 he entered an Alford Plea to a reduced charge of involuntary manslaughter. He was sentenced to 10 years in prison for the manslaughter charge.

He also received two years in prison for tampering with evidence because he threw the gun away after the shooting. He received 12 months in prison for trafficking in marijuana and 11 months in prison for having a weapon while under disability.

But because a gun was used in the incident, he also received the state-mandated three-year prison sentence that must be served consecutively to any other prison term. This made Holton’s prison term 15 years total, without parole.