Court declines to review drug sentence based on new criminal code

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A man who pleaded guilty earlier this year to dealing in oxycodone couldn’t convince the Indiana Court of Appeals that his sentence should be reconsidered based on the revised criminal code that took effect July 1.

Brian Marley and his roommate Kaitlin Palmer were charged with Class B felony dealing in oxycodone, a Schedule II controlled substance. The two were addicted to heroin, and Palmer helped facilitate the sale of Marley’s oxycodone pills to get money for heroin. But she arranged the buys with an undercover police officer, who bought pills from them three separate times in 2013.

Palmer came to a plea agreement where she would be sentenced to 15 years, with five years incarcerated and 10 suspended to probation. Marley couldn’t reach a plea agreement and instead entered an open guilty plea in February 2014. He received 12 years, with 10 executed and two suspended to probation.

In Brian M. Marley v. State of Indiana, 15A01-1403-CR-127, Marley appealed his sentence, claiming that the recent revisions to the criminal code – in which his offense would now be a Level 6 felony with a sentencing range of six months to 18 months – should be considered when deciding his sentence. Based on the statute in effect at the time of his crime, Marley was subject to a sentencing range of six to 20 years.

He argued that the court should consider this reduction in penalties for dealing in a controlled substance when addressing whether his sentence is appropriate. When the General Assembly enacted the new criminal code, it also enacted savings clauses that said the new code does not affect penalties incurred, crimes committed or proceedings begun before July 1, 2014, Judge Paul Mathias explained.

“It is abundantly clear from these statutes that the General Assembly intended the new criminal code to have no effect on criminal proceedings for offenses committed prior to the enactment of the new code. We think this is true with regard to considering the appropriateness of a sentence under Appellate Rule 7(B); we are to proceed as if the new criminal code had not been enacted,” he wrote.

Marley didn’t believe his offense was particularly egregious to support his sentence, but the judges pointed to his criminal history and that he has had a drug problem for years but did not seek treatment until charged with this offense. Based on the offense and his character, the judges declined to say that the sentence imposed is inappropriate.



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  1. The voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith ..

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.