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Prosecutor’s lack of objection allows judge to modify sentence

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In a case where a woman sought modification of her sentence more than a year after it was imposed, the Indiana Supreme Court found that the prosecutor’s conduct satisfied the “approval” requirement of Indiana Code 35-38-1-17(b).

Tammy Sue Harper was sentenced Sept. 19, 2011; she filed her motion for sentence modification Dec. 5, 2012. The trial court at a hearing acknowledged it lacked authority under the statute to modify the sentence but Tippecanoe Circuit Judge Donald Daniel indicated his desire to do so unless the prosecutor’s office objected to the modification and planned to appeal. The deputy prosecutor told the judge he would discuss the matter with the prosecutor’s office, but five weeks had passed and the prosecutor’s office never objected to the modification that would release Harper from the Department of Correction and have her serve the rest of her sentence on probation.

Daniel granted Harper’s motion, leading to this appeal. The Court of Appeals reversed, but the justices affirmed the modification.

The statute in effect at the time of Harper’s offense provided that after 365 days have elapsed, any modification by the trial court is subject to the approval of the prosecuting attorney.

The deputy prosecutor participated in the hearing on the sentence modification request and was aware the trial court wanted to grant the modification unless the prosecutor objected. But the prosecutor never objected or notified the court it planned on appealing if the judge granted the modification.  

“… we conclude that in the context of the facts of this case, the prosecutor’s conduct and communications adequately conveyed the ‘approval of the prosecuting attorney’ required in Indiana Code section 35-38-1-17(b), and that the trial court did not err in proceeding to grant the defendant’s motion for sentence modification,” Chief Justice Brent Dickson wrote for the unanimous court in State of Indiana v. Tammy Sue Harper, 79S02-1405-CR-334.  

 

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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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