ILNews

Sole justice disagrees with sentencing transfer

Michael W. Hoskins
January 1, 2008
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The Indiana Supreme Court has cut an Indianapolis child molester's prison sentence in half from 120 to 60 years, reanalyzing the penalty he received for being convicted of multiple counts of victimizing his stepdaughter.

But one of the state's top jurists objected to the court accepting this sentencing case, emphasizing that reviewing and revising this penalty goes against the high court's role as one of "last resort" and could lead to trial judges being less cautious and measured in sentencing.

A 4-1 ruling came down late Thursday in Michael D. Smith v. State of Indiana, No. 49S05-0806-CR-365. The case involves four merged counts of child molesting for which Smith was originally sentenced to 120 years following a jury trial. He'd been convicted of molesting his stepdaughter four times when she was between the ages of 10 and 14, and the trial court in 2005 sentenced him to serve consecutive sentences of 30 years for each count. The Court of Appeals affirmed that decision in an unpublished memorandum in August 2007.

But in granting transfer and reviewing the sentencing, a majority of justices determined the sentence should be reduced based on the character of the offender and nature of the offenses. Justices relied on Smith's extensive criminal history of two sex-based offenses that echoed the current offenses, as well as "multiple, serious aggravating circumstances" that include the long period of time he molested the girl and the "heinous violation of trust" that occurred. Justices directed one of the counts be imposed consecutive to the other, with the remaining two counts be served concurrently. It left to the trial court to decide which sentences be imposed consecutively and concurrently, and that can be done without a hearing.

In making its decision, the court relied on post-2005 caselaw stemming from Blakely v. Washington, 542 U.S. 296 (2004), and subsequent state law changes in Indiana's sentencing scheme, specifically moving to "advisory" rather than "presumptive" sentences.

Justice Brent Dickson dissented in a separate opinion, writing that he isn't convinced that this case isn't sufficiently "rare or exceptional" to warrant appellate intrusion into the trial court's sentencing decision. He noted the court's authority to review and revise criminal sentences is a permissive option, and the state constitution doesn't compel that review.

"Any greater frequency in appellate revision of criminal sentences may induce and foster reliance upon such review for ultimate sentencing evaluations and thus serve as a disincentive to the cautious and measured fashioning of sentences by trial judges," he wrote. "Restrained sentencing decisions are best made by a trial judge with the gravity that results from knowing that the judge's decisions are essentially final."
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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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