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. 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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