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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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