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High court clarifies sentencing requirement

January 1, 2007
The Indiana Supreme Court ruled today that a defendant who was sentenced to death in 1982 cannot receive life without parole during his second re-sentencing hearing despite being re-sentenced under the post-2002 death penalty statute.

In State of Indiana v. Zolo Agona Azania, 02S03-0505-PD-364, Azania killed a Gary police lieutenant in 1981 and was sentenced to death in 1982. He was re-sentenced to death in 1996. His conviction stands, but his death sentence has been overturned twice. In the instant case, the state petitioned the Supreme Court to rehear its decision reversing a trial court order prohibiting the state from seeking the death penalty for the third time.

The state is asking for clarification of which version of Indiana's death penalty statute applies to the new sentencing phase. The state wants to sentence Azania under the current version of the death penalty statute - issued in 2002 - that in addition to adding the option of life without parole for murders committed after June 30, 1993, when a trial court judge receives a sentencing recommendation from the jury, the judge is to sentence the defendant "accordingly." Under the most recent statute, juries can sentence the defendant to life without parole, the death penalty, or a term of years in prison.

Life without parole is not an option for a jury to choose in Azania's resentencing because he was convicted of murder in 1982, before that was an option for juries. Azania's new sentencing hearing is to be conducted pursuant to the current, post-2002 death penalty statute. Under the 2002 statute, the trial judge will be bound by the jury's sentencing recommendation as opposed to just taking it in into consideration when sentencing. Whatever the jury decides, as long as the sentence is not illegal, the judge must impose, wrote Justice Frank Sullivan.

In a separate opinion, Justice Robert Rucker dissented in part, saying he believes if Azania is going to be sentenced under the 2002 statute, then life without parole must be a sentencing option.
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