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The IBA's Criminal Justice and Appellate Sections File Amicus Brief on Sentencing Issue

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By James Bell and Casey Kannenberg, Bingham McHale
 

Bell James Bell

Sentencing hearings occur in the vast majority of Indiana’s criminal cases. For years, the tools trial judges have used to determine a reasonable sentence have included testimony, character letters, the defendant’s background and Indiana’s sentencing statutes. Recently, Indiana’s trial courts have begun utilizing “scoring models” to help determine a reasonable sentence. The practice of using such “scoring models” was recently challenged by a criminal defendant and his case reached the Supreme Court of Indiana.
 

Kannenberg Casey Kannenberg

Specifically, in Malenchik v. State of Indiana, No. 79S02-0908-CR-364 (Ind. 2010), the trial court, at sentencing, considered the results of a Level of Service Inventory-Revised (“LSI-R”) Report and the results of the defendant’s Substance Abuse Subtle Screening Inventory (“SASSI”). The defendant’s score on the LSI-R placed him in the “High Risk/Needs” category and the SASSI indicated that the defendant has a “high probability” of having a substance dependency. During the sentencing hearing, the judge referenced both the LSI-R and SASSI results, noting that “[Y]our LSIR score is high. Your SASSI score is high with a high probability of substance dependence disorder.” Id. at 3. After considering the Reports and other factors, the trial court ultimately sentenced the defendant to six years imprisonment, with two years suspended. Malenchik, No. 79S02-0908-CR-364, at 3, 4.

On appeal, the defendant challenged the trial court’s use of these scoring models. The State, on the other hand, argued that the Reports may be used in criminal sentencing “if employed consistently with [their] proper purposes and limitations.” Id. Eventually, these arguments reached the Supreme Court of Indiana.

However, prior to ruling on the issue, Chief Justice Shepard requested amicus briefs to aid the Court in reaching a conclusion. With the approval of the IBA Board of Directors, the IBA’s Criminal Justice and Appellate Sections drafted and filed an amicus curiae brief. Prior to the filing of the brief, members of these sections polled judges and criminal practitioners to determine the IBA’s position. Regardless of the position taken by the IBA, the views of all members were contained in the amicus brief and presented to the Court.

The Supreme Court of Indiana eventually arrived at a balanced result that upheld the use of “scoring models,” but limited their use. Specifically, the Court held that “legitimate offender assessment instruments do not replace but may inform a trial court’s sentencing determinations.” Malenchik, No. 79S02-0908-CR-364, at 2. The Court also concluded that “[t]hese evaluations and their scores are not intended to serve as aggravating or mitigating circumstances nor to determine the gross length of sentence, but a trial court may employ such results in formulating the manner in which a sentence is to be served.” Id. at 14.

The Criminal Justice and Appellate Sections would like to thank the judges and lawyers who shared their views and aided in the drafting of this amicus brief. In addition, both sections would like to give a special thanks to Professor Joel Schumm of the Indiana University School of Law-Indianapolis for taking his personal time to draft the amicus brief and for allowing the voices of the IBA’s members to be heard.

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  1. Living in South Bend, I travel to Michigan a lot. Virtually every gas station sells cold beer there. Many sell the hard stuff too. Doesn't seem to be a big deal there.

  2. Mr. Ricker, how foolish of you to think that by complying with the law you would be ok. Don't you know that Indiana is a state that welcomes monopolies, and that Indiana's legislature is the one entity in this state that believes monopolistic practices (such as those engaged in by Indiana Association of Beverage Retailers) make Indiana a "business-friendly" state? How can you not see this????

  3. Actually, and most strikingly, the ruling failed to address the central issue to the whole case: Namely, Black Knight/LPS, who was NEVER a party to the State court litigation, and who is under a 2013 consent judgment in Indiana (where it has stipulated to the forgery of loan documents, the ones specifically at issue in my case)never disclosed itself in State court or remediated the forged loan documents as was REQUIRED of them by the CJ. In essence, what the court is willfully ignoring, is that it is setting a precedent that the supplier of a defective product, one whom is under a consent judgment stipulating to such, and under obligation to remediate said defective product, can: 1.) Ignore the CJ 2.) Allow counsel to commit fraud on the state court 3.) Then try to hide behind Rooker Feldman doctrine as a bar to being held culpable in federal court. The problem here is the court is in direct conflict with its own ruling(s) in Johnson v. Pushpin Holdings & Iqbal- 780 F.3d 728, at 730 “What Johnson adds - what the defendants in this suit have failed to appreciate—is that federal courts retain jurisdiction to award damages for fraud that imposes extrajudicial injury. The Supreme Court drew that very line in Exxon Mobil ... Iqbal alleges that the defendants conducted a racketeering enterprise that predates the state court’s judgments ...but Exxon Mobil shows that the Rooker Feldman doctrine asks what injury the plaintiff asks the federal court to redress, not whether the injury is “intertwined” with something else …Because Iqbal seeks damages for activity that (he alleges) predates the state litigation and caused injury independently of it, the Rooker-Feldman doctrine does not block this suit. It must be reinstated.” So, as I already noted to others, I now have the chance to bring my case to SCOTUS; the ruling by Wood & Posner is flawed on numerous levels,BUT most troubling is the fact that the authors KNOW it's a flawed ruling and choose to ignore the flaws for one simple reason: The courts have decided to agree with former AG Eric Holder that national banks "Are too big to fail" and must win at any cost-even that of due process, case precedent, & the truth....Let's see if SCOTUS wants a bite at the apple.

  4. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

  5. I am in NJ & just found out that there is a judgment against me in an action by Driver's Solutions LLC in IN. I was never served with any Court pleadings, etc. and the only thing that I can find out is that they were using an old Staten Island NY address for me. I have been in NJ for over 20 years and cannot get any response from Drivers Solutions in IN. They have a different lawyer now. I need to get this vacated or stopped - it is now almost double & at 18%. Any help would be appreciated. Thank you.

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