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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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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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