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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  2. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  3. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  4. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  5. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

ADVERTISEMENT