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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. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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