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COA: alternative murder sentence illegal

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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.

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