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The Chautauqua County District Attorney's office will soon be in a state court arguing to have a murder charge reinstated against a Silver Creek mother.
The appeal for 37-year-old Ashley Bertino is scheduled for Sept. 16 in the Fourth Department Appellate Division Court of Appeals.
Bertino's 12-year-old daughter Mya Smith died April 29, 2024 from diabetic ketoacidosis, commonly referred to as untreated diabetes.
Prosecutors believe Mya's life could have been spared if she was given basic medical care. They accused Bertino of having a "depraved indifference to human life" and charged her with second-degree murder. She was also charged with second-degree manslaughter and three counts of endangering the welfare of a child.
Bertino, who is being represented by the Chautauqua County Public Defender's Office, challenged the validity of the second-degree murder charge against Bertino and was successful, with Judge David Foley dismissing the charge.
Following Foley's ruling, Schmidt filed for an appeal to get the murder charge reinstated.
Once the hearing takes place, Schmidt said typically a decision will come a few weeks later. "We're hoping we'll have closure on that issue," he said.
Should the Appellate Division keep the second-degree murder charge dismissed, Schmidt said they will still move forward with a trial for second-degree manslaughter. "There will be a trial no matter what; it just depends on what charge," he said.
At this point, Schmidt said a trial could take place in the first quarter of 2027.
According to Schmidt, a conviction of second-degree murder can range from 25 years to life, while a manslaughter conviction typically will be between 5 and 15 years, and could be as little as 2 ⅓ to seven years.