ILNews

State can't cross-appeal sentence under rule

Jennifer Nelson
January 1, 2008
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The state may not cross-appeal a sentence for an abuse of discretion or inappropriateness unless the defendant appeals his or her sentence in the appellant's brief, the Indiana Court of Appeals ruled today. The issue of the state filing a cross-appeal of a sentence is a matter of first impression.

In Steven McCullough v. State of Indiana, No. 49A02-0711-CR-931, Steven McCullough filed an appeal of his convictions of two counts of criminal confinement, battery, and the finding he was a habitual offender. He did not appeal his sentence.

On cross-appeal, the state asserted the trial court abused its discretion in balancing aggravating and mitigating factors in imposing McCullough's sentence and the sentences for the Class C felony criminal confinement and habitual offender counts are inappropriately lenient.

After examining Appellate Rules 7(A) and 7(B), and Article 7, Section 6 of the Indiana Constitution, the Court of Appeals determined that under Appellate Rule 7(B) and the Indiana Constitution, nothing prohibited the state from cross-appealing a defendant's sentence.

However, the appellate court interpreted Rule 7(A) as making the state's right to cross-appeal a sentence with respect to an abuse of discretion or inappropriateness contingent upon the defendant initiating an appeal of his sentence in his appellant's brief, wrote Judge Terry Crone. Because McCullough didn't appeal his sentence, Appellate Rule 7(A) prohibits the state's cross-appeal.

Judge Michael Barnes, who concurs in result, wrote in a separate opinion that he disagrees with the majority regarding whether the state could cross-appeal a sentence. He wrote the state can't challenge a sentence on cross-appeal in the absence of legal authority expressly authorizing it to do so.

Based on the language of Rule 7(A), which allows the state to cross-appeal where "provided by law," Judge Barnes wrote he believes the issue in this case is whether Indiana law expressly allows such a challenge; he concluded that state law doesn't allow a challenge.

"It is my belief that Indiana jurisprudence leans heavily in the direction of not allowing such an appeal. In my opinion, the majority's holding chills the right of defendants to appeal sentences. Until directed otherwise, either by our legislature or our supreme court, I conclude that the State is not permitted to challenge a defendant's sentence on cross-appeal in any circumstance," he wrote.

The three-judge panel did unanimously conclude there was enough evidence to support McCullough's convictions; however, it also agreed that his convictions of Class C and Class D felony criminal confinement violate the double jeopardy law, causing the appellate court to vacate his Class D felony confinement conviction.
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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