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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. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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