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Judges uphold sentence increase on appeal

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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.
 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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