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High court takes sentence-review case

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The state's highest court has decided to take a case in which a defendant questioned whether the appellate review of a sentence should consider the suspended portion of a sentence as qualitatively different from the executed portion when determining if a sentence is inappropriate.

The Indiana Supreme Court granted transfer to Desmond Davidson v. State of Indiana, No. 49S02-1001-CR-41, in which Desmond Davidson appealed his advisory 545-day sentence -180 days executed and 365 days suspended to probation.

The Court of Appeals has been unable to reach a unanimous agreement on this issue: some judges believed suspended sentences ought to be treated no differently from executed sentences for purposes of appellate review. Others believed a sentence is not a "maximum" one, even if it equals the maximum time allowed by statute if part of that time is suspended.

In Davidson, the Court of Appeals held that in the appellate review of sentencing decisions, the court wouldn't just look at the number of years of the sentence but would look at the total sentence imposed. The appellate court upheld Davidson's sentence.

Judge Michael Barnes concurred in result in a separate opinion because he believed the majority opinion and Jenkins v. State, 909 N.E.2d 1080, 1085-86 (Ind. Ct. App. 2009), which the majority opinion relied on, are inconsistent with Mask v. State, 829 N.E.2d 932 (Ind. 2005). Jenkins held that a maximum sentence is not just a sentence of maximum length but a fully executed sentence of maximum length.

Judge Barnes wrote he would review Davidson's sentence as the 545-day sentence because it's his one chance for full appellate review of the 545-day sentence. He also wrote the trial court didn't abuse its discretion in sentencing him.

The justices denied transfer to Jenkins in October.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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