Court declines to review drug sentence based on new criminal code

September 11, 2014

A man who pleaded guilty earlier this year to dealing in oxycodone couldn’t convince the Indiana Court of Appeals that his sentence should be reconsidered based on the revised criminal code that took effect July 1.

Brian Marley and his roommate Kaitlin Palmer were charged with Class B felony dealing in oxycodone, a Schedule II controlled substance. The two were addicted to heroin, and Palmer helped facilitate the sale of Marley’s oxycodone pills to get money for heroin. But she arranged the buys with an undercover police officer, who bought pills from them three separate times in 2013.

Palmer came to a plea agreement where she would be sentenced to 15 years, with five years incarcerated and 10 suspended to probation. Marley couldn’t reach a plea agreement and instead entered an open guilty plea in February 2014. He received 12 years, with 10 executed and two suspended to probation.

In Brian M. Marley v. State of Indiana, 15A01-1403-CR-127, Marley appealed his sentence, claiming that the recent revisions to the criminal code – in which his offense would now be a Level 6 felony with a sentencing range of six months to 18 months – should be considered when deciding his sentence. Based on the statute in effect at the time of his crime, Marley was subject to a sentencing range of six to 20 years.

He argued that the court should consider this reduction in penalties for dealing in a controlled substance when addressing whether his sentence is appropriate. When the General Assembly enacted the new criminal code, it also enacted savings clauses that said the new code does not affect penalties incurred, crimes committed or proceedings begun before July 1, 2014, Judge Paul Mathias explained.

“It is abundantly clear from these statutes that the General Assembly intended the new criminal code to have no effect on criminal proceedings for offenses committed prior to the enactment of the new code. We think this is true with regard to considering the appropriateness of a sentence under Appellate Rule 7(B); we are to proceed as if the new criminal code had not been enacted,” he wrote.

Marley didn’t believe his offense was particularly egregious to support his sentence, but the judges pointed to his criminal history and that he has had a drug problem for years but did not seek treatment until charged with this offense. Based on the offense and his character, the judges declined to say that the sentence imposed is inappropriate.



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