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 The Court of Appeals affirmed that decision in an unpublished memorandum in August 2007.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. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  3. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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