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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  2. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

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  5. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon