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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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