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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. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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