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Advisory sentence not sentencing starting point

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A man appealing his 15-year sentence for rape made a "novel" argument in his brief: the trial court should have started its calculation of his sentence using the advisory sentence of 10 years instead of using the midpoint of 13 years.

In Ryan Richardson v. State of Indiana, No. 84A04-0811-CR-654, Ryan Richardson's argument in his appeal of his sentence "highlighted an oddity within Indiana's revised sentencing statutes" that hadn't been addressed yet by the state appellate courts, wrote Judge Terry Crone.

Richardson pleaded guilty to rape and sexual misconduct with a minor; his victim was his 15-year-old niece. The trial court merged the convictions and considered it to really be one crime of rape. The trial judge informed Richardson of the maximum of 20 years, minimum of six years and advisory sentence of 10 years for the rape conviction. The judge used the midpoint of 13 years as his starting point for sentencing. From the 13 years, the judge considered the mitigating and aggravating factors and tacked on two years as an enhancement due to Richardson's prior criminal record.

On appeal, Richardson contended the trial judge should have used the advisory sentence of 10 years as the starting point and added or subtracted time from that point. Judge Crone noted that the statutory sections that provide permissible sentences for Class A, B, C, or D felonies - with the exception of murder - don't have advisory sentences that are the mathematical midpoints between the maximum and minimum sentences. However, the fact the advisory sentences for those felonies don't equal the midway point, while strange, doesn't change the fact the "advisory sentence" is not a mandatory starting point, the judge wrote. A trial court isn't required to use the statutory advisory sentence or any other particular point as a starting point in its sentencing considerations.

The appellate judges reviewed Richardson's sentence and found it to be appropriate given the circumstances of the case.

In a lengthy footnote, Judge Crone wrote that the rape and sexual misconduct with a minor charges didn't have to merge and the facts in the probable cause affidavit outlined two distinct acts.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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