ILNews

Judges uphold sentence increase on appeal

Back to TopE-mailPrintBookmark and Share

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.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

ADVERTISEMENT