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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. 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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