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. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...