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COA: Man's sentence could be increased

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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.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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