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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

ADVERTISEMENT