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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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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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