ILNews

COA finds trial court’s error in sentencing was harmless

Back to TopCommentsE-mailPrintBookmark and Share

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.


 

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
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Uh oh, someone is really going to get their panti ... uh, um ... I mean get upset now: http://www.theguardian.com/us-news/2015/mar/31/arkansas-passes-indiana-style-religious-freedom-bill

  2. Bryan, stop insulting the Swedes by comparing them to the American oligarchs. Otherwise your point is well taken.

  3. Sociologist of religion Peter Berger once said that the US is a “nation of Indians ruled by Swedes.” He meant an irreligious elite ruling a religious people, as that Sweden is the world’s least religious country and India the most religious. The idea is that American social elites tend to be much less religious than just about everyone else in the country. If this is true, it helps explain the controversy raking Indiana over Hollywood, San Fran, NYC, academia and downtown Indy hot coals. Nevermind logic, nevermind it is just the 1993 fed bill did, forget the Founders, abandon of historic dedication to religious liberty. The Swedes rule. You cannot argue with elitists. They have the power, they will use the power, sit down and shut up or feel the power. I know firsthand, having been dealt blows from the elite's high and mighty hands often as a mere religious plebe.

  4. I need helping gaining custody of my 5 and 1 year old from my alcoholic girlfriend. This should be an easy case for any lawyer to win... I've just never had the courage to take her that far. She has a record of public intox and other things. She has no job and no where to live othe than with me. But after 5 years of trying to help her with her bad habit, she has put our kids in danger by driving after drinking with them... She got detained yesterday and the police chief released my kids to me from the police station. I live paycheck to paycheck and Im under alot of stress dealing with this situation. Can anyone please help?

  5. The more a state tries to force people to associate, who don't like each other and simply want to lead separate lives, the more that state invalidates itself....... This conflict has shown clearly that the advocates of "tolerance" are themselves intolerant, the advocates of "diversity" intend to inflict themselves on an unwilling majority by force if necessary, until that people complies and relents and allows itself to be made homogenous with the politically correct preferences of the diversity-lobbies. Let's clearly understand, this is force versus force and democracy has nothing to do with this. Democracy is a false god in the first place, even if it is a valid ideal for politics, but it is becoming ever more just an empty slogan that just suckers a bunch of cattle into paying their taxes and volunteering for stupid wars.

ADVERTISEMENT