PINEVILLE, Mo. — A judge, citing a technicality, has denied a McDonald County woman’s appeal for a new trial that she based on claims of ineffective counsel during her 1995 trial.

Circuit Judge Tim Perigo issued the ruling Monday, but attorneys for Sheena Eastburn say that does not mean her case will not be heard.

“It’s just delaying the remedy to which she is entitled,” said Kent Gipson, the Kansas City attorney who is representing Eastburn. “Her sentence and conviction of first-degree murder at age 17 with no possibility of parole will eventually be overturned.”

The judge did not decide how a recent U.S. Supreme Court ruling could affect Eastburn’s conviction on that charge of first-degree murder. She was 17 when her ex-husband, Tim Eastburn, was killed in 1992. She was sentenced to life in prison without the possibility of parole for her part in the death.

On June 25, the Supreme Court found in Miller v. Alabama that the Eighth Amendment forbids a sentencing that mandates life in prison without the possibility for parole for juvenile homicide offenders.

“The judge did not rule on the merits of the case,” Gipson said in a telephone interview Wednesday. “He avoided ruling on the case by using a procedural technicality.”

Gipson said he intends to appeal Perigo’s decision. If the appeal is upheld, the matter would revert to Perigo, who then would be tasked with deciding whether a new trial is warranted or whether Eastburn’s conviction on the first-degree murder charge should be overturned because of the Supreme Court ruling.

Perigo, in reaching his decision, rejected motions that were put forth by Gipson and by Jonathan Pierce, prosecuting attorney of McDonald County. Gipson argued that the appropriate remedy for Perigo would be to vacate Eastburn’s conviction for first-degree murder and enter a judgment of conviction on the lesser offense of second-degree murder. The court then would order a new sentencing hearing either before the court or a jury.

Such a ruling could open the door for Eastburn, now 36, to be sentenced to life in prison with the possibility of parole.

The jury in her trial also did not hear that Eastburn allegedly was raped two times by a jailer while being held in the McDonald County Jail. The jury also was not told that Eastburn allegedly became pregnant while in jail and that her pregnancy was aborted.

The jailer, Terrie Zornes, 47, of Pineville, was charged in the Eastburn rape case after new evidence came to light last year. In a plea bargain in September, he obtained dismissal of the rape charge in exchange for pleading guilty to making sexual advances toward a 14-year-old girl in 2010. He is serving four years in a state prison.

Pierce said the issue of whether a juvenile can be convicted of murder in the first degree based on the current sentencing guidelines is an important issue for courts across the state. He suggested that Perigo transfer the issue to the Missouri Supreme Court “so that it could be decided on a uniform basis for all cases across the state.”

In a telephone interview Wednesday, Perigo said his ruling “was procedural in nature because the Supreme Court ruled last year that it is the court’s duty to follow the rules of the Supreme Court. Those rules say a court shall not entertain a successive motion.

“This was a successive motion in that the original motion for a new trial was appealed in 1997 and denied. Any motion after that would be successive. I shall not entertain a successive motion in this case.”

Perigo said that if his decision is overturned on appeal and the case is remanded to him, “I will address those other issues.”

Eastburn’s mother, Lisa Blevins, of Stella, said Tuesday that her daughter was “just devastated by the decision. She felt like she had made all of those trips from Chillicothe (where she is imprisoned) to McDonald County for nothing, that she went through all of this for nothing.”

Blevins said Wednesday that her daughter had come to terms with the setback and that she was not giving up hope that her case eventually would be heard.

The motion for a new trial, citing ineffective counsel, was filed in September 2010. The court held evidentiary hearings on one day last year and another earlier this year in which witnesses gave conflicting testimony about the circumstances of Eastburn’s 1995 trial in McDonald County.

Gipson contends that Eastburn was “under the substantial domination” of two other defendants who participated in the murder of Tim Eastburn, including the gunman who had stolen Eastburn’s rifle and used it to kill him.

Prosecutors alleged that Eastburn lured her ex-husband into the kitchen of his home near Rocky Comfort on Nov. 19, 1992, setting him up to be shot by Terry Banks and Matthew Myers. After a plea bargain, Myers was sentenced to 67 years on a reduced charge of second-degree murder. Banks was convicted of first-degree murder and was sentenced to life without parole.

Eastburn testified that she had “no understanding of what was happening in court” at the time of her trial.

About Perigo’s decision, Gipson said: “He didn’t address the issues we spent all of this time on the last two years. It is frustrating. It’s a triumph of form over substance.

“I don’t see any reason we would not appeal and get her conviction overturned in the Miller v. Alabama decision. We’re going to pursue all of our options on that.

“What this decision does is delay her getting a chance to see the parole board. That’s what the effect is.”



Deadline

AN APPEAL of the judge’s ruling must be filed within 40 days of the judgment.