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Defendant can't 'earn' sentence modification

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The Indiana Court of Appeals vacated a man's robbery sentence because it found the trial court abused its discretion when sentencing him and couldn't legally reduce his sentence as it said it would if he participated in educational and vocational programs while incarcerated.

In Michael Ashby v. State of Indiana, No. 20A03-080-CR-471, Michael Ashby had pleaded guilty under two separate cause numbers to three counts of Class B robbery while armed with a deadly weapon under an open plea agreement. The trial court mentioned Ashby's remorse during sentencing but didn't acknowledge it as a mitigating factor. After sentencing him to three consecutive 20-year terms in prison, the trial court said it would be willing to modify his sentence after he served the six-year non-suspendable portion of his sentence if he wrote the trial judge and told the court what educational and vocational programs he participated in while in prison. Then the judge told Ashby if he earned modification, the judge would grant it.

In the appeal of his sentences, the Court of Appeals determined the trial court's decision to place the burden on Ashby to earn modification was an abuse of discretion under Indiana law.

The trial court had to balance mitigating and aggravating factors as they existed at the time of sentencing, wrote Judge James Kirsch. In addition, the trial court did acknowledge Ashby's remorse several times, yet failed to recognize the remorse or his open guilty plea as mitigating factors. The "earn a modification" approach is contingent upon too many variables and although the trial court has the power to modify sentences, that power is severely limited by the requirement of the prosecutor's consent after the passage of a year, wrote Judge Kirsch.

The appellate court vacated Ashby's sentence and remanded with instructions that the trial court consider Ashby's remorse and his open pleas for which he received nothing from the state in return.

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