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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. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

  5. Can I get this form on line,if not where can I obtain one. I am eligible.

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