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COA finds trial court’s error in sentencing was harmless

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A trial court’s error in considering an arrest record as evidence of criminal history was harmless, the Indiana Court of Appeals ruled, because the aggravators and mitigators would have led the lower court to impose the same sentence.

Dennis Vermillion was convicted of two counts of Class C felony sexual misconduct with a minor after an incident in 2009 with his friend’s 14-year-old daughter, S.H. The court sentenced Vermillion to eight years – five years executed and three years suspended to probation – on each count, to run consecutively, for a total sentence of 16 years.

In Dennis Vermillion v. State of Indiana, 13A01-1201-CR-17, Vermillion appealed and the COA affirmed in part, reversed in part and remanded for resentencing.

On his appeal, Vermillion raised numerous arguments regarding his sentence. He claimed the trial court erred in ordering consecutive rather than concurrent sentences. Also, he argued his total 16-year sentence exceeds the statutory cap for consecutive sentences and his sentence is inappropriate.

The COA found the trial court did not abuse its discretion in ordering consecutive sentences based on the facts of this case where two separate and distinct crimes were committed against S.H.

However, the COA found that the trial court did abuse its discretion by imposing a sentence greater than what is allowed by the statute. The court pointed out that because it is undisputed that Vermillion’s convictions are violent crimes and that his crimes constitute a single episode of criminal conduct, his sentence cannot exceed the advisory 10-year sentence for a Class B felony.

In regards to the appropriateness of his sentence, Vermillion argues that the trial court improperly considered past charged offenses that were dismissed as part of a plea agreement as well as uncharged misconduct as aggravators.

Again, the COA found the trial court erred in considering Vermillion’s arrest record as evidence of his criminal history. The Indiana Supreme Court has held that a record of arrest, without more, may not be properly considered as evidence of criminal history.

Yet, the COA concluded the error was harmless since the evidence may be considered as it relates to Vermillion’s character. Further, it believes the lower court would have imposed the same sentence in light of the remaining aggravators and mitigators.


 

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  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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