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Court rules on suspended sentence issue

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A panel of Indiana Court of Appeals judges ruled on an issue that has generated a split of opinion among them: whether a fully executed sentence is equivalent to a sentence of equal length but partially suspended to probation for purposes of review under Appellate Rule 7(B).

In Christopher Jenkins v. State of Indiana, No. 49A05-0812-CR-711, the appellate court unanimously disagreed with its colleagues who concluded that the two sentences are equivalent for purposes of an appropriateness challenge. Christopher Jenkins was sentenced to eight years, with six suspended and only two of those suspended to probation for Class C felony possession of cocaine and Class D felony methamphetamine.

He argued his sentence was inappropriate in light of the nature of his offenses and his character, and that his sentence must be treated as a "maximum" sentence for purposes of App. R. 7(B).

Most defendants would gladly accept a partially suspended sentence over a fully executed one of equal length, wrote Judge Cale Bradford. Even though the imposition of a suspended sentence leaves open the possibility that a person will be incarcerated for some period before being released from his or her penal obligation, whether or not the suspended time is eventually served depends on the actions of the defendant.

"In a sense, an eight-year sentence with two years executed and two years suspended to probation is a two-year sentence with an option for two more, the exercise of which option is entirely up to the defendant," he wrote. "In the end, we believe all would agree that, all else being equal, a two-year executed sentence is less harsh than an eight-year executed sentence. It is just as clear that an eight-year sentence with six years suspended, two of those to probation, lies somewhere in between, and we treat it as such for purposes of Rule 7(B) review."

Although the appellate court wasn't aware of any Indiana Supreme Court cases directly on this point, it used Hole v. State, 851 N.E.2d 302, 304, (Ind. 2006), Mask v. State, 829 N.E.2d 932, 936 (Ind. 2005), and Buchanan v. State, 767 N.E.2d 967, 973 (Ind. 2002), to support its view.

The Court of Appeals affirmed Jenkins' convictions and sentence, but reversed the order he pay $55 in restitution to the police officer whose uniform was torn while chasing Jenkins after he fled during a traffic stop.

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  1. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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