State can't cross-appeal sentence under rule

Jennifer Nelson
January 1, 2008
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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.

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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.