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Court grants transfer to clarify appeals by state

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The Indiana Supreme Court granted a transfer with opinion to address conflicting rulings regarding the state's ability to challenge the legality of a criminal sentence without first filing a motion to correct erroneous sentence. The high court held the state may challenge a criminal sentence by appeal without first filing the motion and that appeal doesn't have to happen within 30 days of the sentencing judgment.

The Supreme Court split 3-2 Tuesday in its decision in Samuel Hardley v. State of Indiana, No. 49S05-0905-CR-290, in which the state argued in its reply brief to Samuel Hardley's appeal of his theft, criminal confinement, and battery convictions that the trial court erroneously imposed concurrent sentences instead of consecutive sentences. Statute says consecutive sentences are mandatory when one crime is committed while on personal recognizance for another crime, which happened in the instant case.

The Court of Appeals ruled the state could challenge the sentence based on the doctrine of fundamental error and also declined to require the state to challenge the allegedly erroneous sentence within 30 days of the final judgment, which departs from the ruling in Hoggatt v. State, 805 N.E.2d 1281, 1284 (Ind. Ct. App. 2004). Hardley argued on appeal for transfer that the state waived any right to challenge his sentence because it failed to raise an objection in the trial court, didn't file a motion to correct erroneous sentence, and didn't raise the issue until cross-appeal.

The majority didn't agree with the 30-day deadline for the state to challenge a sentence by direct appeal, as was held in Hoggatt, nor did they extend the "facially erroneous" requirement in Robinson v. State, 805 N.E.2d 783 (Ind. 2004), to restrict efforts by the state to challenge an illegal sentence, wrote Justice Brent Dickson.

The high court held Indiana Code Section 35-38-1-15 also allows the state to challenge illegal sentences; the state's appellate sentence challenge, when the issue is a pure question of law, is an acceptable substantial equivalent to the motion to correct erroneous sentence; and an appellate challenge by the state doesn't have to be initiated in the trial court or commenced within 30 days of the judgment, wrote the justice.

Justices Theodore Boehm and Robert Rucker dissented in a separate opinion that the state should not be allowed to appeal an erroneous sentence without first raising the issue in the trial court. Justice Boehm wrote that he would follow the high court's ruling in Griffin v. State, 493 N.E.2d 439 (Ind. 1996), and require the state follow the procedure authorized in the ruling or pursue a motion to correct error under Indiana Trial Rule 59 to preserve its right to challenge a sentence on appeal.

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  1. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  2. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

  3. I am one of Steele's victims and was taken for $6,000. I want my money back due to him doing nothing for me. I filed for divorce after a 16 year marriage and lost everything. My kids, my home, cars, money, pension. Every attorney I have talked to is not willing to help me. What can I do? I was told i can file a civil suit but you have to have all of Steelers info that I don't have. Of someone can please help me or tell me what info I need would be great.

  4. It would appear that news breaking on Drudge from the Hoosier state (link below) ties back to this Hoosier story from the beginning of the recent police disrespect period .... MCBA president Cassandra Bentley McNair issued the statement on behalf of the association Dec. 1. The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer Darren Wilson for shooting Michael Brown. “The MCBA does not believe this was a just outcome to this process, and is disheartened that the system we as lawyers are intended to uphold failed the African-American community in such a way,” the association stated. “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” http://www.thestarpress.com/story/news/local/2016/07/18/hate-cops-sign-prompts-controversy/87242664/

  5. What form or who do I talk to about a d felony which I hear is classified as a 6 now? Who do I talk to. About to get my degree and I need this to go away it's been over 7 years if that helps.

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