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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. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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