DECATUR - Esmon V. Jones failed Tuesday in an attempt to get Circuit Judge Katherine McCarthy to reduce the 35-year prison sentence given him after a jury convicted him of first-degree murder in the Aug. 4, 2006, shooting death of Calvin Fakes.

Macon County Public Defender Greg Mattingley argued that the judge at sentencing put too much emphasis on the 24-year-old Jones' sketchy employment history and his inability to support his children. He said lack of employment is not allowed to be a factor to aggravate or increase a sentence.

McCarthy also stated at sentencing that she perceived a lack of remorse in Jones for his crime, but, in fact, Jones was only advocating what he had asserted all along, that he was not the shooter in Fakes' death, Mattingley said.

Testimony at trial by police officers and other witnesses was that Fakes repeatedly stated a co-defendant, Jerome Davis, was the man who shot him, Mattingley said. The jury declined to enter a special finding that Jones had personally discharged a gun in Fakes' death, he said.

Assistant State's Attorney David Spence said McCarthy's sentence for Jones was well within the 20 to 60 years allowed for first-degree murder. He cited several appellate court cases to rebut Mattingley's assertions. One case found a defendant could not take a judge's statement out of context, and another case stated it was not improper for a trial court to consider the impact of denial of guilt on a defendant's rehabilitation.

McCarthy noted that Davis has not been convicted in Fakes's death, and his case is pending. She said if Davis is tried, convicted and received a longer sentence than Jones, would that not negate Jones' argument that his sentence was not equitable?

Mattingley acknowledged that could be the case.

McCarthy said she did not give major consideration to Jones' employment status at sentencing, nor did she hold against him his assertion he was not the shooter in Fakes' death.

Ron Ingram can be reached at ringram@herald-review.com or 421-7973.