ILNews

Judges uphold sentence increase on appeal

Back to TopE-mailPrintBookmark and Share

The Indiana Court of Appeals affirmed the defendant’s sentence that they had increased on appeal in March in an opinion on rehearing today and addressed the characteristics of an Indiana Appellate Rule 7(B) review.

In Jeffrey E. Akard v. State of Indiana, No. 79A02-0904-CR-345, Jeffrey Akard asked the court to rehear his appeal because he believed the Court of Appeals’ upward revision of his sentence for rape and other convictions violated the party presentation principle. The principle is a general rule that courts rely on the parties to frame the issues for decision and that the act of a court raising an issue sua sponte is normally reserved for situations requiring protection of pro se litigants’ rights.

In an March 30, 2010, opinion, the appellate court decided to increase Akard’s 93-year sentence to 118 years because of the heinous, violent acts he committed against his victim. The judges reviewed his sentence under Appellate Rule 7(B).

By requesting a review under Rule 7(B), in light of McCullough v. State, Akard had the opportunity to present his arguments under the rule’s standard knowing that McCullough allowed for an appellate court to revise a sentence upward or downward, wrote Judge L. Mark Bailey. Akard also was the one to present the issue and laid the framework for the sentence revision.

Akard also argued that parties can’t address the potential double jeopardy issues implicated by a revised sentence under Rule 7(B) revisions.

“This argument evidences a miscomprehension of the mechanics of double jeopardy and 7(B) review of an aggregate sentence,” wrote the judge. “Double jeopardy is not an issue of sentencing error. Rather, it potentially arises at the moment judgments of conviction are entered.”

Double jeopardy or any other issue that can be raised independently isn’t relevant to the independent appellate review of an aggregate sentence under Rule 7(B). The only constraint is the revision must be in the legal range set by the legislature, and Akard’s increased sentence fell in that range.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The Conour embarrassment is an example of why it would be a good idea to NOT name public buildings or to erect monuments to "worthy" people until AFTER they have been dead three years, at least. And we also need to stop naming federal buildings and roads after a worthless politician whose only achievement was getting elected multiple times (like a certain Congressman after whom we renamed the largest post office in the state). Also, why have we renamed BOTH the Center Township government center AND the new bus terminal/bum hangout after Julia Carson?

  2. Other than a complete lack of any verifiable and valid historical citations to back your wild context-free accusations, you also forget to allege "ate Native American children, ate slave children, ate their own children, and often did it all while using salad forks rather than dinner forks." (gasp)

  3. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  4. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  5. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

ADVERTISEMENT