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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.