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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. Contact Lea Shelemey attorney in porter county Indiana. She just helped us win our case...she is awesome...

  2. We won!!!! It was a long expensive battle but we did it. I just wanted people to know it is possible. And if someone can point me I. The right direction to help change the way the courts look as grandparents as only grandparents. The courts assume the parent does what is in the best interest of the child...and the court is wrong. A lot of the time it is spite and vindictiveness that separates grandparents and grandchildren. It should not have been this long and hard and expensive...Something needs to change...

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