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Despite having spent 20 years in prison for the murder of Paul R. Smith outside the Majestic Restaurant in 1997, Daron "D" Nesbit has shown little remorse and a lack of understanding about the effect of his actions on others, a York County judge said Friday.

Still, the 36-year-old Nesbit isn't incorrigible, Common Pleas Judge Maria Musti Cook said.

She re-sentenced him to 38 years to life in prison, discounting the prosecution's request for 50 years to life and the defense's request for a minimum of 20 or 25 years. Nesbit receives credit for the 20 years he's already served, meaning he must serve about 18 more years before being eligible for parole.

Nesbit was twice convicted of first-degree murder — his first conviction was overturned for trial errors — and twice sentenced to life in prison without the possibility of parole. He was 16 years old at the time of the murder.

But his punishment was called into question in 2012, when the U.S. Supreme Court ruled it unconstitutional to automatically sentence juveniles to life in prison without parole.

Juvenile lifers: A life sentence can still be handed down to a juvenile for the most heinous of crimes, SCOTUS ruled, but it cannot be an automatic sentence.

In Pennsylvania, adults convicted of first- and second-degree murder receive automatic life sentences without the possibility of parole. Since the SCOTUS ruling, juveniles convicted of murder as adults in Pennsylvania can receive shorter sentences than life.

That means youths who were automatically sentenced to life in prison prior to the ruling are entitled to re-sentencing hearings. There are 11 such "juvenile lifers" in York County.

Amy Worden, press secretary for the state Department of Corrections, said there are currently 517 juvenile lifers across the state.

The Pennsylvania Supreme Court has now weighed in about those new sentences, saying juveniles should only rarely be sentenced to life without parole. The state's highest court has directed prosecutors that such cases require proof beyond a reasonable doubt that a defendant is a rare example of someone who can never be rehabilitated.

Judge's reasoning: Nesbit's family packed the defense side of Cook's courtroom Friday, listening closely as the judge explained how she decided on Nesbit's sentence.

A punishment of 50 years to life would basically amount to a life sentence, especially since the life expectancy of black men born in the United States in 1980 is about 68 years, Cook said.

But Nesbit is not yet ready to be released, she said, citing a psychiatrist's finding that he has antisocial personality disorder, lacks conscience, has poor impulse control and "does what he wants when he wants without regard to others."

His upbringing didn't contribute to him committing crimes, according to the judge.

Supportive family: "Mr. Nesbit had the support of a large extended family who want the best for him, even to this day," she said. Nesbit chose to skip school, carry a weapon and hang out with bad influences anyway, according to the judge.

Cook noted that Smith's children have grown up without a father.

She also said there was "absolutely no justification for the use of deadly force" in the encounter between Smith and Nesbit.

'Incomprehensible': "It is incomprehensible that death occurred" over such a small disagreement, she said, adding that both the prosecution's and defense's mental-health experts agreed Nesbit remains immature.

Cook cited Nesbit's issues in prison, including fighting, assault, gambling, refusing to obey orders, having contraband and threatening another inmate.

She also recounted that in a hearing earlier this year, Nesbit said "that no one had considered the impact of the (crime) on him and his family."

"His continued claim of self-defense ... demonstrates a distorted version of reality," Cook said.

The murder: Smith, 21, was inside the former Majestic Restaurant at 287 W. Market St. on March 8, 1997, and was getting a woman's phone number when Nesbit told the woman, "You're nasty."

Smith and Nesbit argued and were told to take it outside, which they did.

Smith took off his jacket and raised his arms in a "let's fight" gesture, which is when Nesbit pulled out a .25-caliber handgun and fired two rounds into Smith, according to previous trial testimony.

Family reacts: Nesbit's family members were visibly upset after hearing his new sentence, and some wept.

"There are people out here who have done worse crimes and done less time," said Elizabeth Vazquez, Nesbit's mother.

Both she and Nesbit's father, Darnell Simpson, said they believe the justice system is unfair.

"If it was black-on-black crime, he'd be out (of prison) now," Simpson said. "I could see if he was in jail shanking people. ... But he went 14 years without getting into trouble (in prison)."

Defense attorney George Marros said he and Nesbit will be discussing appeal options.

Smith's mother and significant other declined comment after the hearing.

Deputy prosecutor Steph Lombardo, who had requested a 50-year-to-life sentence, said she respects Cook's decision.

— Reach Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.

 

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