James Leiby

A Zelienople man was granted early parole in Butler County Court on Wednesday, pending the decision to vacate his sentence.

James M. Leiby, 40, will be released from the Butler County Prison pending a parole plan after the order was issued by Judge Timothy McCune.

McCune also took under advisement an argument relating to vacating Leiby's conviction, after his attorney, Public Defender Charles Nedz, argued that the sentence was unconstitutional.

Leiby was previously sentenced to 12 months minus one day to 24 months minus two days after previously pleading guilty to felony failing to register as a sex offender with the state police.

The underlying charge comes from a 2003 conviction of felony statutory sexual assault following a Sept. 1, 2002, incident. He was initially sentenced in September 2003 to 11 months and 15 days to 23 months in prison.

Nedz said at the time, the initial sentence “was not a registerable offense,” but on Dec. 20, 2012, new sexual offender statutes were passed, requiring Leiby to register retroactively.

After that, the failure to register charges came about, when Jackson Township police say he failed to register his address change on Oct. 11, 2016.

He pleaded guilty on May 23, 2017.

Following that sentence on June 8, 2017, Nedz argued that the state Supreme Court decided an unrelated case involving the same issue on July 19, 2017, deciding that retroactive registration violated the state constitution.

“The Supreme Court has spoke on this issue,” he said. “That decision invalidates this statute and makes it an unconstitutional statute. I do think Mr. Leiby is incarcerated unconstitutionally and he has a legitimate issue here.”

Assistant District Attorney Laura Pitchford argued that while the Supreme Court decision has been made, per court policies, the case has not yet been remanded to the original court for disposition, and therefore the “decision is not actionable.”

“I believe this was prematurely filed,” she said of the motion to vacate.

McCune took the arguments under advisement and will issue an order later.

Immediately following, Nedz informed the court of a motion filed by Leiby himself for early parole, which was granted pending the outcome of the vacation decision.

Leiby was held in the Butler County Prison on $75,000 bail since Dec. 23. 2016.