TOPEKA, Kan. (WIBW) -- A 17-year-old Topeka youth formally was charged as an adult and served with the charges of fatally shooting his girlfriend in August.
Auston Michael Shane McNeely was charged with reckless second-degree murder, interference with a law enforcement officer, theft of a firearm, and criminal use of a firearm, Shawnee County District Attorney Mike Kagay said Friday.
Kagay said he agrees that McNeely should be tried as a an adult rather than a juvenile. On Thursday after a hearing, Shawnee County District Court Judge Darian Dernovish waived McNeely to adult court to stand trial.
The charges McNeely faces are the same as those he faced in juvenile court, but the penalties for convictions as an adult carry much longer terms of incarceration than juvenile convictions.
If a juvenile is convicted of felonies and juvenile jurisdiction of the youth is extended, that jurisdiction generally expires when the defendant turns 22 years and 6 months old, Kagay said. That includes the murder conviction.
However, if a juvenile is convicted as an adult, he faces the sentencing grid any other adult defendant faces.
For example, a reckless second-degree murder conviction carries a prison sentence ranging from nine years and one month to 41 years and one month, depending on the defendant's earlier criminal convictions.
Of the four charges, all are felonies except criminal use of a firearm, which is a misdemeanor, Kagay said.
Dernovish ordered McNeely to be tried in adult court in the shooting death of the 18-year-old Ashley Usher girlfriend on August 17 following a two-hour hearing. The shooting of Usher occurred outside 2229 S.E. Ohio, the home where Usher's mother and siblings lived. McNeely and Usher were in a serious relationship, Usher's mother McNeely testified Thursday.
The couple lived in the home's living room, and the couple did household assignments at the home and received between $5 and $10 daily, the mother said.
During the hearing, the judge heard testimony that McNeely was carrying a 9 mm semiautomatic pistol in his waistband shortly before Usher was shot.
After Usher was shot, McNeely twice tossed the pistol outside and also threw away the shell casing ejected from the pistol when she suffered the fatal wound.
Hiding the gun and shell casing show criminal sophistication for a teen and is "frightening" to the judge, he said.
Before the hearing started Thursday, the judge ruled the hearing would be open to the public.
Defense Attorney Gary Conwell had asked the judge to close the hearing to the public due to McNeely being a juvenile.
A Kansas statute says juvenile court hearings are open to the public unless the judge decides opening the hearing to the public isn't in the best interest of the victim or of any juvenile who at the time of the alleged offense was less than 16 years old.
In opposing the closing the courtroom, Assistant District Attorney Keith Henderson noted McNeely was 17.
McNeely stole the pistol three weeks before Usher was shot and he test-fired one of the two bullets in the firearm, he testified. McNeely testified he carried the pistol, which had one bullet, for protection.
On Aug. 17, McNeely took the pistol from his waistband and handed it to Usher, he retrieved it from her to show her how to operate it, and the pistol discharged as he was handling it, striking her, according to his testimony.
McNeely's defense attorney Gary Conwell urged the judge to keep McNeely in juvenile court, saying the victim told police the shooting was an accident. Nothing indicated the two were fighting or didn't like each other.
Henderson, the prosecutor, said McNeely's case needed to be in adult court.
"This is something he did and something he is responsible for," Henderson said. "Justice requires waiver."
Usher suffered a "contact" wound in which the 9mm pistol was against her skin and clothing, Henderson said, saying McNeely wasn't taking the pistol apart when it discharged.