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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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