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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. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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