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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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