A judge granted a Hays man probation with underlying time in county jail instead of a prison sentence, despite concerns from the prosecution about his ability to follow court orders.

Judge Glenn Braun sentenced Mathew Markley, 41, Wednesday morning in Ellis County District Court to 24 months probation for a felony conviction of felony aggravated arson. Markley was charged in an Oct. 24 incident in which he set off an explosive device, described as the equivalent of two M-80 firecrackers, at the door of his girlfriend’s apartment building.

Both he and Nicola Pfeifer, 30, had been charged in a 2017 case of felony possession of methamphetamine, and she was scheduled to testify against him at trial. A no-contact order was in place between them at the time.

Markley pleaded to the 2017 case and was sentenced on April 25 to 18 months probation with an 11-month prison term should he violate terms of probation. He will serve the probation for the aggravated arson consecutive to that term, giving him a total of 42 months under the supervision of Northwest Kansas Community Corrections.

Braun also sentenced Markley on Wednesday to 24 months probation to be served concurrently for misdemeanor charges of possession of marijuana, and violation of a protective order and endangering a child related to the Oct. 24 incident. The underlying sentence for violation of probation in those cases is a total of three years in Ellis County Jail.

Ellis County Attorney Tom Drees argued for prison time for the arson conviction, noting it was a felony that occurred while Markley was on bond for the 2017 felony case and under the no contact order with Pfeifer.

“He has shown that he was not willing to follow court orders,” Drees said in his closing statement.

In addition, Drees noted Pfeifer allowed Markley to move in with her and her children after Braun lifted the no contact order. He recommended that if Markley received probation, a condition would be to undergo a batterer’s intervention program, although Pfeifer testified Wednesday he had never physically harmed her.

“In my opinion, this is a very dangerous situation,” Drees said.

“Once in a while the court has to be proactive to protect people,” he said.

Pfeifer, however, said the difference between Markley at the time he was charged with the crimes and today is like “night and day.” She said he was “amazing” with the children, taking them to the library, sports and other activities and caring for them while she works.

John Trembley, director of Northwest Kansas Community Corrections, said that while Markley was under his direct supervision from Feb. 5 to his April 25 sentencing on the 2017 case, Markley had no violations of his conditions. He reported for his drug tests as ordered three days a week, even showing up 15 minutes early for appointments, and never had a positive test. During the supervision, Markley wore a GPS monitor, which also never indicated any issues.

Trembley said he would even occasionally drive by Markley’s and Pfeifer’s residences and saw no indication they were violating the no contact order, nor ever received notice from law enforcement of any violations.

When the no contact order was lifted, Trembley said he worked out a housing plan that both agreed to. Violation would mean Markley would have to move out.

Trembley also noted a drug treatment program is available to Markley, and he was waiting for Wednesday’s sentencing results to make a recommendation for him.

Markley’s appointed attorney, Don Anderson, acknowledged Markley’s crimes stemmed from a drug problem, but said the intense supervision of Community Corrections has been beneficial.

“Mr. Markley has shown he can be amenable to supervision,” Anderson said.

Braun, in explaining his sentence, said he had lifted the no contact order between Markley and Pfeifer with some concern, but in the hope they could be a positive influence on each other. Braun did order Markley to be evaluated for the batterer’s intervention program as part of his probation, and to comply with recommendations for that as well as a drug treatment program.