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Supreme Court analyzes appellate review rule on sentences

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Addressing an issue that’s divided the state’s intermediate appeals judges, the Indiana Supreme Court has held that review under Appellate Rule 7 may include consideration of a person’s total penal consequences within a trial court sentence.

Justices ruled today on Desmond Davidson v. State of Indiana, No. 49S02-1001-CR-41, which involves a defendant convicted of auto theft and resisting law enforcement. Desmond Davidson received an aggregate sentence of 545 days, and Marion Superior Judge James Osborn ordered that 180 days be executed and 365 days be suspended to probation. Davidson appealed and said the total advisory sentence was inappropriate.

Although the Court of Appeals affirmed last year, the panel disagreed about whether it should review “his partially-suspended advisory sentence the same as if it were a fully-executed advisory sentence.” The judges relied on caselaw from the past several years discussing the issue and the majority favored consideration of the fact that a portion of the sentence was suspended. Justices granted transfer to consider the issue.

The court noted that Indiana’s Constitution expressively provides for appellate power to “review and revise the sentence imposed,” and that in line with that provision Indiana Appellate Rule 7 authorizes a criminal defendant to appeal a sentence and allows that the reviewing court “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Trial judges have many options to consider in imposing a sentence, the justices found.

The Court of Appeals was correct in this case, and the justices disapprove of the contrary views expressed in Eaton v. State, 825 N.E. 2d 1287, 1291 (Ind. Ct. App. 2005); Pagan v. State, 809 N.E. 2d 915, 926, n.9 (Ind. Ct. App. 2004); and Cox v. State, 792 N.E. 2d 898, 904 n.6 (Ind. Ct. App. 2003).

“We decline to narrowly interpret the word ‘sentence’ in Appellate Rule 7 to constrict appellate courts to consider only the appropriateness of the aggregate length of the sentence without considering also whether a portion of the sentence is ordered suspended or otherwise crafted using any of the variety of sentencing tools available to the trial judge,” Justice Brent Dickson wrote. “This does not preclude a reviewing court from determining a sentence to be inappropriate due to its overall sentence length despite the suspension of a substantial portion thereof. A defendant on probation is subject to the revocation of probation and may be required to serve up to the full original sentence.”
 

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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