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Appeals court splits on new sentence modification issue

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An inmate’s request for a sentence modification has divided the Indiana Court of Appeals, with the majority concluding that the 365-day period during which a trial court could grant a modification begins when someone is originally sentenced, not re-resentenced after a successful appeal.

In Nathan D. Hawkins v. State of Indiana, No. 79A02-1101-CR-100, Nathan Hawkins appealed the denial of his request for sentence modification. He was originally sentenced to 16 years in July 2009 after pleading guilty to child molesting. Hawkins appealed and the COA vacated the sentence, ordering a new 10-year sentence. The trial court issued the new sentence in April 2010, and in November 2010, Hawkins asked for the modification.

The trial court denied it because it was more than a year after he was originally sentenced and because the prosecutor didn’t approve a modification.

The majority affirmed in this first impression issue, citing Redmond v. State, 900 N.E.2d 40, 42-43 (Ind. Ct. App. 2009), to hold that the 365-day period did not restart when Hawkins was re-sentenced. Judges Terry Crone and Edward Najam suggested that defendants who want to pursue both remedies should request a stay of the appeal provided by Appellate Rule 37 to allow the trial court to consider the motion for sentence modification.

Chief Judge Margret Robb dissented, believing that based on language in statute, the clock restarts when someone is re-sentenced. She also pointed out holes in the majority’s reasoning to use the stay procedure, such as if a defendant stays his appeal, the sentence is modified, and then he appeals that reduced sentence, which sentence is the appellate court to review?

She wants the Indiana Legislature to revisit the sentence modification statute – which is not clear on when the 365-day period is triggered – and make any amendments to provide a clear, workable rule.

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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