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Judges uphold sentence increase on appeal

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The Indiana Court of Appeals affirmed the defendant’s sentence that they had increased on appeal in March in an opinion on rehearing today and addressed the characteristics of an Indiana Appellate Rule 7(B) review.

In Jeffrey E. Akard v. State of Indiana, No. 79A02-0904-CR-345, Jeffrey Akard asked the court to rehear his appeal because he believed the Court of Appeals’ upward revision of his sentence for rape and other convictions violated the party presentation principle. The principle is a general rule that courts rely on the parties to frame the issues for decision and that the act of a court raising an issue sua sponte is normally reserved for situations requiring protection of pro se litigants’ rights.

In an March 30, 2010, opinion, the appellate court decided to increase Akard’s 93-year sentence to 118 years because of the heinous, violent acts he committed against his victim. The judges reviewed his sentence under Appellate Rule 7(B).

By requesting a review under Rule 7(B), in light of McCullough v. State, Akard had the opportunity to present his arguments under the rule’s standard knowing that McCullough allowed for an appellate court to revise a sentence upward or downward, wrote Judge L. Mark Bailey. Akard also was the one to present the issue and laid the framework for the sentence revision.

Akard also argued that parties can’t address the potential double jeopardy issues implicated by a revised sentence under Rule 7(B) revisions.

“This argument evidences a miscomprehension of the mechanics of double jeopardy and 7(B) review of an aggregate sentence,” wrote the judge. “Double jeopardy is not an issue of sentencing error. Rather, it potentially arises at the moment judgments of conviction are entered.”

Double jeopardy or any other issue that can be raised independently isn’t relevant to the independent appellate review of an aggregate sentence under Rule 7(B). The only constraint is the revision must be in the legal range set by the legislature, and Akard’s increased sentence fell in that range.
 

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  1. 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

  2. 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

  3. 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

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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