ILNews

State can't cross-appeal sentence under rule

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
The state may not cross-appeal a sentence for an abuse of discretion or inappropriateness unless the defendant appeals his or her sentence in the appellant's brief, the Indiana Court of Appeals ruled today. The issue of the state filing a cross-appeal of a sentence is a matter of first impression.

In Steven McCullough v. State of Indiana, No. 49A02-0711-CR-931, Steven McCullough filed an appeal of his convictions of two counts of criminal confinement, battery, and the finding he was a habitual offender. He did not appeal his sentence.

On cross-appeal, the state asserted the trial court abused its discretion in balancing aggravating and mitigating factors in imposing McCullough's sentence and the sentences for the Class C felony criminal confinement and habitual offender counts are inappropriately lenient.

After examining Appellate Rules 7(A) and 7(B), and Article 7, Section 6 of the Indiana Constitution, the Court of Appeals determined that under Appellate Rule 7(B) and the Indiana Constitution, nothing prohibited the state from cross-appealing a defendant's sentence.

However, the appellate court interpreted Rule 7(A) as making the state's right to cross-appeal a sentence with respect to an abuse of discretion or inappropriateness contingent upon the defendant initiating an appeal of his sentence in his appellant's brief, wrote Judge Terry Crone. Because McCullough didn't appeal his sentence, Appellate Rule 7(A) prohibits the state's cross-appeal.

Judge Michael Barnes, who concurs in result, wrote in a separate opinion that he disagrees with the majority regarding whether the state could cross-appeal a sentence. He wrote the state can't challenge a sentence on cross-appeal in the absence of legal authority expressly authorizing it to do so.

Based on the language of Rule 7(A), which allows the state to cross-appeal where "provided by law," Judge Barnes wrote he believes the issue in this case is whether Indiana law expressly allows such a challenge; he concluded that state law doesn't allow a challenge.

"It is my belief that Indiana jurisprudence leans heavily in the direction of not allowing such an appeal. In my opinion, the majority's holding chills the right of defendants to appeal sentences. Until directed otherwise, either by our legislature or our supreme court, I conclude that the State is not permitted to challenge a defendant's sentence on cross-appeal in any circumstance," he wrote.

The three-judge panel did unanimously conclude there was enough evidence to support McCullough's convictions; however, it also agreed that his convictions of Class C and Class D felony criminal confinement violate the double jeopardy law, causing the appellate court to vacate his Class D felony confinement conviction.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

ADVERTISEMENT