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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. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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