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 The Court of Appeals affirmed that decision in an unpublished memorandum in August 2007.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. 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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