ILNews

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.

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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

ADVERTISEMENT