Former Marine gets 30 days in jail for wreck that killed father, son

Sentencing a 25-year-old man on Wednesday, Dec. 28, Routt County District Judge Erin Wilson told the family of a father and son killed in a careless driving wreck on U.S. Highway 40 west of Hayden that her decision would bring them no comfort.

Rejecting calls from the deceased’s family and friends to impose the maximum amount of jail time, Wilson sentenced Derrek A. Cheek to 30 days in the Routt County Jail and Detention Center, along with two years supervised probation and 192 hours of community service.

To the friends and family of the deceased, Judge Wilson apologized for “imposing a sentence that (they) undoubtedly feel is unjust,” and said she hopes they can move forward without the anger they have in their hearts.

Based on courtroom testimony and information previously provided by Colorado State Patrol, Cheek was headed west in a Ford F-350 at about 8 p.m. June 11 with two sleeping passengers in the pickup. He fell asleep and veered into the westbound lane, where the F-350 collided with a GMC Sierra going the opposite direction. The F-350 went off the side of the road, and the Sierra rolled before coming to rest on its roof.

Inside the Sierra, Mark and Kyle O’Donnell of Woodland Park were coming home from a father-son camping trip. According to Colorado State Patrol, they died at the scene, while Cheek, his girlfriend and another passenger in the F-350 suffered various injuries, some serious.

Cheek received his sentence after reaching a plea deal with the 14th Judicial District Attorney’s Office and agreeing to admit to one count of careless driving causing death, a Class 1 traffic misdemeanor with punishment capped at one year in jail and up to a $1,000 fine.

Because any potential restitution has yet not been determined — the judge left the matter open for 45 days — and because Cheek expressed financial hardship during Wednesday’s hearing, Wilson said she would not impose any fines beyond the court fees and expenses Cheek already must pay.

As Wilson explained for the courtroom, Cheek’s plea agreement came with an “open sentencing,” allowing her to impose any lawful sentence without any stipulations in place with the district attorney’s office. In this case, Wilson said she could sentence Cheek to a jail term anywhere from 10 days to one year if she didn’t impose probation, or she could give him up to 60 days in jail if she did include probation.

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Much to the dismay of Mark and Kyle O’Donnell’s family and friends, Cheek was allowed to appear in court over a Webex video feed. Asked if he understood the courtroom proceedings and if this was how he wished to move forward, Cheek replied, “Yes, ma’am,” twice in a distinct Southern accent.

Before the judge handed down Cheek’s sentence, Mark and Kyle O’Donnell’s loved ones were given an opportunity to address the court. Many had driven long distances through inclement weather to be at the hearing. Others offered their comments over video feeds and in letters to the court.

Mark’s and Kyle’s best friends, Kyle’s brother and sister, his grandmother and his mother told the court about their loved ones, how they missed them and asked the judge to make Cheek serve the max amount of jail time. Kyle’s mom, Amy Livingston, told the judge how their “family’s life has been shattered beyond repair” by Cheek’s “decision to drive” and how they’re “living in a nightmare that doesn’t end and will never end.”

She said Mark was an entrepreneur and an amazing father who wanted to be with his sons every chance he could get. Kyle had an infectious smile and played football and baseball from elementary school through high school, and if he wasn’t working, he was probably out hiking, camping, mountain biking or hanging out with his sister, she added.

“Kyle was 23 and so far ahead of most people his age,” Livingston cried, explaining that her son already had a retirement plan and was saving for a down payment on a house. “Little did he know the down payment on his home would be used to bury him.”

Livingston talked about many of the things Kyle will never get to do and how his family’s lives are forever diminished without him in them. The deaths of the father and son also put the family in a huge financial burden without an end in sight, as Livingston said she’s been desperately trying to make payments on Mark’s home so his son Curtis can stay in the same house he was raised in.

“I am physically and mentally exhausted,” Livingston said, adding that they also had to euthanize the family dog after the wreck. “The fact that (Cheek) has not offered an apology to our family for what he has done says a lot about him.”

She also asked for the maximum, saying it would never be enough for Mark’s and Kyle’s family and friends because they will be dealing with this nightmare long after Cheek finishes serving his time.

“I’m so heartbroken and angry,” she said. “There is no good explanation or reason why they are not here today.”

At one point, Judge Wilson reminded the speakers to direct their comments to the court and not the defendant, who sat silent with his eyes focused on his computer monitor during the family’s remarks.

Addressing the court, Cheek’s girlfriend Brooke Lauson spoke on his behalf, recalling how she was badly injured in the wreck herself but has since forgiven Cheek and hopes others can too. She emphasized the wreck was an accident.

In his statements, Cheek’s attorney Doug Timmerman asked the judge for 30 days in jail, also arguing that Cheek’s mistake was not intentional and said his actions could not even be considered reckless under the careless driving charge.

“He fell asleep. He had been tubing that day, and two other people in the car were both sleeping in the vehicle,” Timmerman said. “Mr. Cheek did not intentionally do this.”

Timmerman added that Cheek is “incredibly polite” and “respectful,” calls his attorney “sir,” and served in the Marines for four years, including overseas.

District Attorney Matt Karzen hammered Cheek’s video appearance as “dismissive,” but Timmerman framed Cheek’s appearance over video as an effort to maintain the schedule, not Cheek trying to avoid responsibility or a sign of disrespect to the family or the court.

The defense attorney went on to say Cheek’s father was the victim of a hit-and-run, and that driver was never found, so Cheek does understand what it feels like to lose someone, and there was no one to pay for Cheek’s loss.

Timmerman erroneously implied Cheek’s father was killed in a hit-and-run, but Cheek later corrected his attorney, explaining that his father survived, but has been declared incompetent and was essentially turned into “a vegetable.”

More than once, Timmerman told the judge Cheek’s sentence should be determined by the offense and remain in line with similar sentences the court has given for similar infractions. Timmerman said Cheek will have to live with the wreck he caused for the rest of his life and that Cheek is sorry and remorseful.

Given an opportunity to speak before sentencing, Cheek used it to apologize. He said he previously held back on legal advice but was ready to apologize now.

After listing Mark and Kyle O’Donnells’ family members and friends by their names, Cheek said that from the moment he wakes up until the time he goes to bed, he thinks about Mark and Kyle O’Donnell and the people he hurt by causing the wreck. He said not a day goes by that he wishes it didn’t happen, and he hopes something like this never happens to anyone else.

“I am really sorry,” Cheek said. “Thank you, ma’am.”

In delivering the sentence, Judge Wilson said she believed Cheek’s apology was sincere. She noted that he didn’t have a criminal history and said she believed community service would be more appropriate than a long jail term.

“Mark and Kyle sound like amazing men, full of love and life and giving light to everybody who touched them, and I hope that at some point, those memories and those parts of who they are, are what you are able to remember,“ Wilson told their family and friends.

Cheek will need to contact the jail and arrange for an intake date to begin serving his sentence no later than Feb. 8.

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