ILNews

Sole justice disagrees with sentencing transfer

Michael W. Hoskins
January 1, 2008
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The Indiana Supreme Court has cut an Indianapolis child molester's prison sentence in half from 120 to 60 years, reanalyzing the penalty he received for being convicted of multiple counts of victimizing his stepdaughter.

But one of the state's top jurists objected to the court accepting this sentencing case, emphasizing that reviewing and revising this penalty goes against the high court's role as one of "last resort" and could lead to trial judges being less cautious and measured in sentencing.

A 4-1 ruling came down late Thursday in Michael D. Smith v. State of Indiana, No. 49S05-0806-CR-365. The case involves four merged counts of child molesting for which Smith was originally sentenced to 120 years following a jury trial. He'd been convicted of molesting his stepdaughter four times when she was between the ages of 10 and 14, and the trial court in 2005 sentenced him to serve consecutive sentences of 30 years for each count. The Court of Appeals affirmed that decision in an unpublished memorandum in August 2007.

But in granting transfer and reviewing the sentencing, a majority of justices determined the sentence should be reduced based on the character of the offender and nature of the offenses. Justices relied on Smith's extensive criminal history of two sex-based offenses that echoed the current offenses, as well as "multiple, serious aggravating circumstances" that include the long period of time he molested the girl and the "heinous violation of trust" that occurred. Justices directed one of the counts be imposed consecutive to the other, with the remaining two counts be served concurrently. It left to the trial court to decide which sentences be imposed consecutively and concurrently, and that can be done without a hearing.

In making its decision, the court relied on post-2005 caselaw stemming from Blakely v. Washington, 542 U.S. 296 (2004), and subsequent state law changes in Indiana's sentencing scheme, specifically moving to "advisory" rather than "presumptive" sentences.

Justice Brent Dickson dissented in a separate opinion, writing that he isn't convinced that this case isn't sufficiently "rare or exceptional" to warrant appellate intrusion into the trial court's sentencing decision. He noted the court's authority to review and revise criminal sentences is a permissive option, and the state constitution doesn't compel that review.

"Any greater frequency in appellate revision of criminal sentences may induce and foster reliance upon such review for ultimate sentencing evaluations and thus serve as a disincentive to the cautious and measured fashioning of sentences by trial judges," he wrote. "Restrained sentencing decisions are best made by a trial judge with the gravity that results from knowing that the judge's decisions are essentially final."
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  1. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  2. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

  3. Lets talk about this without forgetting that Lawyers, too, have FREEDOM OF SPEECH AND ASSOCIATION

  4. Baer filed with the U.S. Court of Appeals Seventh Circuit on April 30 2015. When will this be decided? How many more appeals does this guy have? Unbelievable this is dragging on like this.

  5. They ruled there is no absolute right to keep a license, whether it be for a lifetime or a short period of time. So with that being said, this state taught me at the age of 15 how to obtain that license. I am actually doing something that I was taught to do, I'm not breaking the law breaking the rules and according to the Interstate Compact the National Interstate Compact...driving while suspended is a minor offense. So, do with that what you will..Indiana sucks when it comes to the driving laws, they really and truly need to reevaluate their priorities and honestly put the good of the community first... I mean, what's more important the pedophile drug dealer or wasting time and money to keep us off the streets?

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