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Judges disagree as how to review sentence

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A panel of Indiana Court of Appeals judges affirmed today that a defendant's sentence following a guilty plea wasn't inappropriate, but the judges didn't agree as to how to reach that conclusion.

In T. L. Brandon Hollar v. State of Indiana, No. 43A05-0906-CR-319, Judges L. Mark Bailey and Cale Bradford relied on Jenkins v. State, 909 N.E.2d 1080 (Ind. Ct. App. 2009), to determine T. L. Brandon Hollar's sentence of three years in prison with two years suspended wasn't inappropriate. Hollar pro se pleaded guilty to Class D felony nonsupport of a dependent child and argued on appeal that he received the maximum sentence despite the two years being suspended to probation. He wanted the Court of Appeals to revise it through Indiana Appellate Rule 7(B).

The split Jenkins court concluded that in analyzing whether a sentence is inappropriate under Rule 7(B), anything less than a fully executed sentence of the maximum length doesn't constitute a maximum sentence. It also ruled that it's not realistic to consider a year of probation, a year in community corrections, and a year in prison as equivalent.

The majority looked at whether Hollar's sentence was composed of executed imprisonment time, in whole or in part, or included any alternatives to incarceration while performing the 7(B) analysis. It determined based on the nature of the offense and Hollar's character, he hadn't persuaded the appellate court that his sentence was inappropriate.

Judge Nancy Vaidik agreed with the result of the majority's ruling, but believed the court should use a different approach in evaluating sentences. She referred to Mask v. State, 829 N.E.2d 932, 935-36 (Ind. 2005).

"A probationary term poses the very 'real possibility' that a defendant will have to serve his suspended sentence," she wrote. "Whether or not this is within the control of the defendant, I find it unrealistic to ignore the suspended portions of a sentence and review only those portions ordered executed."

Her main concern was if the appellate court declines to review the totality of a potential sentence on direct appeal, the defendant would have no other opportunity to challenge the appropriateness of the sentence should probation be revoked. She declined to follow Jenkins and instead would review the entirety of Hollar's suspended and executed sentences for inappropriateness. She also concluded based on his character and the circumstances of the case, his sentence is appropriate.

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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