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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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