ILNews

Court rules on upward sentence revision

Back to TopCommentsE-mailPrintBookmark and Share

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

ADVERTISEMENT