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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

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