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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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