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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. 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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