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Court rules on upward sentence revision

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The Indiana Supreme Court held today that appellate courts have the authority to increase a sentence on appeal, but the state can't initiate or cross-appeal review of the sentence and can't ask for a greater sentence if the defendant doesn't initiate an appeal.

The high court granted transfer in Steven McCullough v. State of Indiana, No. 49S02-0809-CR-508, to address whether an appellate court could increase a sentence and whether the state by cross-appeal may initiate a challenge to a trial court's sentence.

The Indiana Court of Appeals affirmed McCullough's convictions of and sentences for Class C felony criminal confinement and Class A misdemeanor battery, but reversed his Class D felony criminal confinement conviction on double jeopardy grounds. The appellate court also ruled the state's constitution allowed appellate courts to review and revise sentences and even impose a more severe sentence and that the state couldn't cross-appeal to challenge a defendant's sentence unless the defendant appealed his sentence. The Supreme Court affirmed the Court of Appeals' decision.

Justice Brent Dickson, writing for the majority, first analyzed the history of Article 7, Section 4 of the Indiana Constitution in determining whether appellate courts can increase a sentence. The article, which became effective in 1972, was based heavily on the 1962 American Bar Association Model Judicial Article, which used the Court of Criminal Appeals in England's power as a model. In England at the time, appellate judges could increase a sentence, although the British courts' authority to increase a sentence was diminished in 1968 by Parliament.

The term "revise" refers to a change or alteration, wrote Justice Dickson, and with no specific prohibition against increasing a sentence and given the history of the text in Section 4, the Supreme Court held the appellate review and revise authority includes the power to reduce or increase a criminal sentence on appeal.

However, since McCullough didn't appeal his sentence, the state couldn't on cross-appeal seek a remand for resentencing or request his sentence be increased. When a defendant wants a review of his sentence, the state may respond in its brief with reasons that support an increase in the sentence, the justice wrote.

Justice Theodore Boehm concurred and concurred in result with a separate opinion, with which Justice Robert Rucker concurred with part two of Justice Boehm's opinion.

Justice Boehm agreed with the majority's decision, but came to his conclusion through a different path, he wrote. He believed the 1970 amendment shows appellate review was to be encouraged, but also indicated a strong disposition toward upward sentence revisions.

In terms of revising sentences, Justice Boehm didn't join in the holding that appellate upward revision is dependent on the defendant's challenge of his sentence, finding the scheme the majority described for allowing the state to argue for an increased sentence in its appellee brief to be impractical. It could place defense counsel in an "awkward" position if upward revision by an appellate court is a realistic prospect, he wrote.

In the 36 years the appellate courts have had the authority to increase a sentence, they have not and Justice Boehm wrote the courts should state they have that power but do not expect to exercise it except in the most unusual case.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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