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Justices uphold sentence, clarify previous caselaw

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The Indiana Supreme Court accepted a case to address the proposition that relying on an element of the offense as an aggravating factor when sentencing is no longer prohibited. The justices believe that the Court of Appeals has applied this position too broadly.

Joshua Gomillia, while on drugs, decided with two friends to rob a house to make up some money lost while gambling. Gomillia picked the Indianapolis home and he and Lebronze Myles broke into E.K.’s home, sexually assaulted her and stole property and her car. Gomilla agreed to plead guilty to one count of Class A felony criminal deviate conduct and Class B felony robbery in exchange for his executed sentence being capped at 40 years.

When he was sentenced, the trial court commissioner cited in aggravation the circumstances of the crime and the terror Gomillia inspired in the victim. He received an executed sentence of 40 years. Gomillia argued those two factors cited by the commissioner are essentially elements of the offenses, so they cannot be used to enhance his sentence above the advisory sentence. The Court of Appeals cited Pedraza v. State, 887 N.E.2d 77 (Ind. 2008) in finding that relying on an element of the offense as an aggravating factor is no longer prohibited.

Since Townsend v. State, 498 N.E.2d 1198, 1201 (Ind. 1986), courts have relied upon the rule outlined in it that a material element of an offense may not constitute an aggravating circumstance to support an enhanced sentence. But in Pedraza, the justices said a trial court’s finding of the existence of an aggravating factor to elevate a criminal charge based on the same prior conviction is not an inappropriate double enhancement.

“Citing Pedraza in support several panels of the Court of Appeals have taken the position that trial courts are no longer prohibited from considering material elements of an offense when considering aggravating circumstances at sentencing. We believe this is too broad a reading of
Pedraza,” Justice Robert Rucker wrote.

Double enhancements aside, the justices held Tuesday that the use of a material element of an offense as a reason for the sentence a trial court imposes can be “improper as a matter of law” in some circumstances.

“[W]e have consistently said ‘the advisory sentence [under the current statutory regime] is the starting point the Legislature selected as an appropriate sentence for the crime committed,’” Rucker continued. “… under the current statutory regime the Legislature has determined the appropriate advisory sentence based upon the elements of the offense. Where a trial court’s reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is ‘improper as a matter of law.’ Nothing in Pedraza should be understood to alter this basic premise.”
 
But in Gomillia’s case, the nature and circumstances of the crime included the trial court’s discussion of the leadership role he played in the commission of these offenses, as well as the terror the victim suffered. Both are appropriate reasons for justifying a sentence greater than the advisory term, the justices held in Joshua Gomillia v. State of Indiana, 49S02-1408-CR-521.

 

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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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