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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. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

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  4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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