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COA: Man’s sentence after guilty plea is illegal

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The Indiana Court of Appeals reversed a man’s 10-year sentence resulting from a guilty plea for abusing his adopted teenaged children, holding that the sentence was based on an incorrect application of I.C. 35-50-1-2.

Larry Russell faced multiple felony charges for the severe neglect and abuse of his children over the course of three months, but agreed to plead guilty to five counts of neglect of a dependent as Class C felonies and two counts of Class C felony criminal confinement in exchange for the dismissal of the four remaining counts.  

The plea agreement left sentencing up to the judge, but capped it at 10 years pursuant to I.C. 35-50-1-2(c). The judge, bound by the agreement, limited his sentence to 10 years, although based on the sentencing statement, would have handed down a longer sentence.

The Court of Appeals reversed his sentence in Larry D. Russell, Jr. v. State of Indiana, 84A01-1312-CR-532, because it was based on an erroneous application of the statute. His offenses do not constitute an “episode” subject to the limitations imposed by that statute. Based on these facts, the sentence imposed contravened the statute and is an illegal sentence, Judge Edward Najam wrote.

“Here, the parties attempt to treat the ten-year sentence as severable. But sentencing is a material element of every plea agreement, and we cannot say either that Russell would have pleaded guilty under the plea agreement without the ten-year cap on his sentence or that the State would have agreed to the terms of the plea agreement without its erroneous understanding of Indiana Code Section 35-50-1-2,” he continued. And the sentencing statement indicates that, but for the statutory limitation, the trial court would have sentenced Russell to 24 years executed.

“While we acknowledge the local prosecutor’s discretion in such matters, there is no question that this case is exactly the type of case that the State should be expending its time and resources prosecuting. And we cannot sanction an illegal sentence. While we respect the consideration that the victims should be spared the burden of testifying at trial, this concern does not justify enforcement of an illegal agreement,” Najam wrote.

The judges remanded to the trial court for Russell to have the option to proceed with the current plea agreement without the illegal sentencing limitation. If he goes that route, the judges noted he would face a possible maximum sentence of 56 years. If Russell doesn’t exercise that option within 30 days after this decision was been certified, then the plea agreement shall be vacated.
 

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  1. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  3. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “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.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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