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30 days in jail for death of 5-year-old boy

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Myles Keller, the Mantorville man behind the wheel of the vehicle that struck and killed 5-year-old Lukas Wharton last spring, was sentenced Friday to a total of 30 days in jail.

Those days, however, will be divided into two 15-day terms: one beginning Oct. 3 — which would've been Lukas's 7th birthday, and the other beginning May 24 — the anniversary of the crash that took his life.

Keller, 70, was originally charged with one count of reckless driving-conscious disregard of a substantial risk, a gross misdemeanor, and two misdemeanor counts of fourth-degree DWI.

In July, he entered an Alford plea of guilty to one of the DWI charges, which means he maintains his innocence but acknowledges that the evidence would be sufficient to convict him.

The remaining counts were dismissed during Friday's sentencing in Olmsted County District Court.

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Lukas was outside with his siblings May 24, 2016, riding down an embankment in a child's wagon, when a car driven by Keller came down 19th Avenue Northwest, near the Whartons' Byron home.

The vehicle struck Lukas and the wagon, pushing them for several yards, the report says.

A family member carried Lukas to the Wharton residence; Keller followed them up the driveway to the residence and called 911.

Lukas died from his injuries eight days later at a Rochester hospital.

There would be "no way to prove" the more serious charge of criminal vehicular homicide, a felony, said Olmsted County Attorney Mark Ostrem. The legal statute requires proof beyond a reasonable doubt that Keller's driving conduct was a substantial factor in Lucas's death or that Keller's acts had a substantial role in the crash leading to the death.

Based on multiple reports, Keller's "driving conduct was very purposeful and deliberate in sneaking his way home," Ostrem said. "We believe he did that because he knew he was over the (alcohol) limit and was trying to avoid detection."

Prosecutor Byron Black requested the maximum sentence of 90 days in jail and a $1,000 fine.

"Anything I can say pales in comparison to those who were impacted in this case," he said.

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A photo of Lukas and his family sat on the bench as Judge Kathy Wallace listened to victim impact statements from his parents.

"Lukas was a beautiful, caring boy whose death has left a hole in our family," said his father, Josh Wharton.

He went on to tell Wallace that the family did not push for manslaughter charges to be filed against Keller, in order to "protect our family" from a long, drawn-out legal process.

Keller, however, "countered with a (motion for) dismissal of all charges," Wharton said, "which speaks to his character. He's sorry it happened to him," not that it killed a 5-year-old boy.

"I wonder if I'll ever feel true happiness again," Wharton said. "Lukas was a great kid. He loved his life … I would do anything to hold my little boy again."

A victims' advocate read the impact statement from April Wharton, Lukas's mother.

Though he's been gone for "16 months, it seems like 100 years since I've seen my little boy," she said. His siblings "don't play like they used to; the impact for them is forever lasting."

Several other family members, including grandparents, aunts and uncles submitted letters about the affect of Lukas's death.

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Keller's supporters also submitted letters to "show his character," said defense attorney Thomas Braun.

"Their justification is the death of Lukas," Braun said of the requests for jail time, but "to sentence him to jail is to punish him for a crime he never committed. The government didn't charge him" with the crime of taking a life.

"What we have here is a DUI."

Keller's blood alcohol content was 0.069 two hours after the crash, court documents say. An analyst with the Minnesota Bureau of Criminal Apprehension concluded his BAC would have been between 0.081 and 0.103 at the time of the crash.

The legal limit to drive in Minnesota is 0.08.

Keller was driving under the speed limit that day, Braun said, called 911 after the crash, stayed at the scene and cooperated with officials.

"There's nothing that could've been done to prevent" the crash, he said; "and alcohol consumption didn't play a role" in it.

Keller has "accepted responsibility for consuming alcohol, but he's not responsible for the causation of death."

"This has been a very trying time for me, to say the least," Keller told the court. "I regret the circumstance that brings me here today. This is just a tragedy, a tragedy for everyone.

"My heart goes out to the family," he said. "May God bless and bring us peace. I'm sorry for the whole tragedy."

Wallace began her sentencing by citing a letter written by one of Lukas's uncles.

"This touched me," she said, "because it's the same thought process that I've been going through."

The letter reads in part, "Some may say that this was 'just an accident,' 'couldn't have been avoided,' 'two people in the wrong place at the wrong time,' but the fact of the matter is that this was much more than that. This is the case of a 70-year-old man violating the law and operating his vehicle when he knowingly shouldn't have."

Wallace agreed.

"We don't know whether this was an unavoidable accident or not," she said, "and we'll never know. I've been bothered by the voluminous amount of letters (on behalf of Keller), that all said it was 'an accident.'

"It's important to know that we don't know," Wallace said, "but for the impairment, what might have been the outcome. I have concerns that you don't take responsibility" for the role his drinking played.

"Clearly, you were impaired," she said. "You did the right thing, in that you stuck around afterward, but you were impaired."

Braun requested Keller be allowed to serve 90 days of electronic home monitoring, and no jail time.

"Some jail time is appropriate," Wallace told him. "This DUI is more egregious than the standard DUI that comes before this court every day.

"There is no right answer, so I'm going to do the best that I can."

In addition to the staggered 30-day jail term, Wallace ordered Keller to complete 40 hours of community work service in lieu of a fine.

"It's the hope of this court that maybe you can turn this situation into educating others about the dangers of drinking and driving," she said. "It may help in your healing, as well.

"I don't doubt that you're a good person," Wallace said, "but good people do make poor choices, and there are consequences for those choices."

It echoes what Ostrem outlined in the charging document:

Keller "made some very poor decisions that night," among them, drinking three beers at a Byron bar in less than an hour on an empty stomach. He then drove on unpaved roads with a number of turns, hills and crests and driveways and field entrances with limited visibility, the complaint says.

The route nearly doubled the time it normally took Keller to drive home, Ostrem said.

The Wharton family declined to comment after the sentencing.

Related Topics: CRIME
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