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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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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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