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COA finds trial court’s error in sentencing was harmless

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A trial court’s error in considering an arrest record as evidence of criminal history was harmless, the Indiana Court of Appeals ruled, because the aggravators and mitigators would have led the lower court to impose the same sentence.

Dennis Vermillion was convicted of two counts of Class C felony sexual misconduct with a minor after an incident in 2009 with his friend’s 14-year-old daughter, S.H. The court sentenced Vermillion to eight years – five years executed and three years suspended to probation – on each count, to run consecutively, for a total sentence of 16 years.

In Dennis Vermillion v. State of Indiana, 13A01-1201-CR-17, Vermillion appealed and the COA affirmed in part, reversed in part and remanded for resentencing.

On his appeal, Vermillion raised numerous arguments regarding his sentence. He claimed the trial court erred in ordering consecutive rather than concurrent sentences. Also, he argued his total 16-year sentence exceeds the statutory cap for consecutive sentences and his sentence is inappropriate.

The COA found the trial court did not abuse its discretion in ordering consecutive sentences based on the facts of this case where two separate and distinct crimes were committed against S.H.

However, the COA found that the trial court did abuse its discretion by imposing a sentence greater than what is allowed by the statute. The court pointed out that because it is undisputed that Vermillion’s convictions are violent crimes and that his crimes constitute a single episode of criminal conduct, his sentence cannot exceed the advisory 10-year sentence for a Class B felony.

In regards to the appropriateness of his sentence, Vermillion argues that the trial court improperly considered past charged offenses that were dismissed as part of a plea agreement as well as uncharged misconduct as aggravators.

Again, the COA found the trial court erred in considering Vermillion’s arrest record as evidence of his criminal history. The Indiana Supreme Court has held that a record of arrest, without more, may not be properly considered as evidence of criminal history.

Yet, the COA concluded the error was harmless since the evidence may be considered as it relates to Vermillion’s character. Further, it believes the lower court would have imposed the same sentence in light of the remaining aggravators and mitigators.


 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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