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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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