COA: Man's sentence could be increased

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals determined the recent ruling by the state's highest court regarding upward sentence revisions was applicable to a defendant's sentence. The appellate court declined to revise his sentence, however, because the man's brief was filed before the Indiana Supreme Court decided McCullough.

In Billy Atwood v. State of Indiana, No. 49A02-0809-CR-844, Billy Atwood appealed his convictions of possession of paraphernalia, operating a motor vehicle while privileges are suspended, and possession of cocaine. The state cross-appealed the trial court erred in granting Atwood permission to file a belated appeal.

The Court of Appeals affirmed the permission to file the belated appeal and affirmed Atwood's convictions based on sufficient evidence. The appellate court also found the trial court didn't commit reversible error by giving an improper instruction informing the jury of defenses available to a defendant charged with possession of cocaine with 1,000 feet of a school over Atwood's objection.

Atwood also appealed his 12-year sentence for his Class B felony conviction of possession of cocaine, claiming it was inappropriate in light of the nature of the offense and his character. The state, in response to Atwood's brief that was filed before the Feb. 10, 2009, decision in McCullough v. State, 900 N.E.2d 745, 746 (Ind. 2009), argued Atwood's sentence was unduly lenient. The state cited McCullough for support of revising Atwood's sentence upward.

Under McCullough, when a defendant requests appellate review and revision of his criminal sentence, the reviewing court may affirm, reduce, or increase the sentence, and announced the Supreme Court's view of the procedural posture necessary for the state to seek an increase in a sentence, wrote Judge James Kirsch. That ruling also held the state couldn't initiate review of a sentence on appeal or cross-appeal, but was restricted to making the argument in response to a request for a sentence revision initiated by the defendant.

Using Smylie v. State, 823 N.E.2d 679, 690-691 (Ind. 2005), the appellate court determined McCullough could apply to Atwood's case even though the ruling came down after Atwood filed his appeal.

In the instant case, since Atwood appealed his sentence, it is open for the appellate court to increase it. However, because his brief was filed before McCullough was decided, the Court of Appeals was unable to say with confidence Atwood would have raised the issue regarding the appropriateness of his sentence had he known it could be increased, wrote Judge Kirsch. As such, the appellate court declined the state's invitation to reduce the sentence upward.

The Court of Appeals did affirm his 12-year sentence, which included a two-year enhancement, finding it to be appropriate given his criminal history.


Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  2. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.

  3. maybe if some of the socia workers would treat the foster parents better, they would continue to fostr.

  4. We have been asked to take in a 2 no old baby because mother is in very unstable situation. We want to do this but will need help with expenses such as medical and formula... Do we have to have custody thru court?

  5. Very troubling. A competent public defender is very much the right of every indigent person in the US or the Fifth amendment becomes meaningless. And considering more and more of us are becoming poorer and poorer under this "system," the need for this are greater than ever.... maybe they should study the Federals and see how they manage their program? And here's to thanking all the PD attorneys out there who do a good job.