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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. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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