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. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  2. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

  3. Such is not uncommon on law school startups. Students and faculty should tap Bruce Green, city attorney of Lufkin, Texas. He led a group of studnets and faculty and sued the ABA as a law student. He knows the ropes, has advised other law school startups. Very astute and principled attorney of unpopular clients, at least in his past, before Lufkin tapped him to run their show.

  4. Not that having the appellate records on Odyssey won't be welcome or useful, but I would rather they first bring in the stray counties that aren't yet connected on the trial court level.

  5. Aristotle said 350 bc: "The most hated sort, and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. Wherefore of an modes of getting wealth this is the most unnatural.

ADVERTISEMENT