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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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