ILNews

COA: alternative murder sentence illegal

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals ruled a defendant is entitled to re-sentencing on his murder conviction since the trial court wasn't authorized to sentence him to death and to a term-of-years sentence if the death penalty was overturned.

"With respect to practical considerations, it is apparent from this case that the alternative sentencing scheme is fraught with peril," wrote Judge Cale Bradford. "By providing for one imposed sentence and another potential sentence, this scheme creates ambiguity and confusion with respect to questions of waiver and preservation of error, it blurs issues available for and addressed upon review, and it obfuscates orders and instructions upon remand."

In Chijoike Bomani Ben-Yisrayl, f/k/a Greagree Davis v. State of Indiana,  No. 49A02-0806-CR-512, Chijoike Bomani Ben-Yisrayl appealed his aggregate 150-year sentence for his convictions in 1984 of murder, rape, burglary, and criminal confinement. He received a total of 90 years on the rape, burglary, and criminal confinement convictions and the death sentence for murder. In the event the death penalty was set aside, the trial court also imposed a 60-year sentence for murder.

Through a series of appeals, Ben-Yisrayl's death penalty was eventually overturned and the state moved to dismiss the imposition of it. Marion Superior Judge Grant Hawkins, who was to hear Ben-Yisrayl's case on remand, recused himself because he had been asked to remove himself on another death penalty case. In 2008, the trial court adopted the 150-year sentence originally imposed.

Indiana Code Section 35-50-2-3 provides the options for murder sentences, but the plain language doesn't explicitly authorize the imposition of both a term-of-years sentence and the death penalty, wrote Judge Bradford. Without explicit authority, and the fact I.C.35-50-2-9, the death penalty statute, makes no reference to it, the appellate court isn't inclined to infer the trial court may elect both options simultaneously.

"Here, because the death penalty and term of years were designated alternative sentences, in theory they were arguably never simultaneously imposed in violation of double jeopardy," he wrote. "Nevertheless, the imposition of two sentences, with one automatically to take effect upon the vacation of the other, especially when the other remains viable and the focus of the proceedings, creates needless risk for overlap and accompanying double jeopardy violations."

Finding his murder sentence to be illegal, the judges remanded with instructions to conduct a sentencing hearing and re-sentence Ben-Yisrayl. He is also entitled to a Blakely hearing at re-sentencing.

Ben-Yisrayl also challenged Judge Hawkins' recusal. The Court of Appeals affirmed the trial court that was assigned this case after Judge Hawkins recused himself and it couldn't properly be transferred back because Judge Hawkins never set aside his recusal.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  2. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  3. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  4. Indiana up holds this behavior. the state police know they got it made.

  5. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

ADVERTISEMENT