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Judges divided over sentence review under Appellate Rule 7(B)

August 2, 2016

The majority on a panel of the Indiana Court of Appeals declared Tuesday that Indiana Appellate Rule 7(B) requires only that the court “consider” the nature of the offense and the offender’s character, not that the defendant necessarily prove both of those prongs. This led to a separate opinion calling the decision “significant.”

William Connor was charged when he was 17 years old with Class B felony criminal deviate conduct related to repeated sexual conduct with his 16-year-old sister over a two-year period against her will. He was charged in a separate case with Level 3 felony rape for acts committed against a second victim, but he pleaded guilty to the Class B felony charge in exchange to dismissal of the rape charge.

Connor spent the first three years of his life in Russia, where he was unable to speak and severely malnourished until he was placed into an orphanage. The Connor family, who has two biological daughters, adopted him at age four. Connor has been diagnosed with reactive attachment and bipolar disorders and attempted suicide several times. He has not been consistent in taking prescribed medication or attending therapy.

The trial court sentenced him to 14 years in the Department of Correction, with four years suspended to probation.  Connor appealed his sentence, but the state claimed he waived his review of his sentence because he only argued that it is inappropriate in light of his character and did not make a specific argument relating to the nature of the offense.

Judges Margret Robb and Terry Crone held that their reading of Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006), does not require that a defendant prove both prongs.

“[A]lthough the rule (Indiana Appellate Rule 7(B)) does state that we may revise a sentence we find to be inappropriate ‘in light of the nature of the offense and the character of the offender,’ we view that as a statement that we as the reviewing court must consider both of those prongs in our assessment, and not as a requirement that the defendant must necessarily prove each of those prongs render his sentence inappropriate,” she wrote.

Judge Edward Najam wrote in a concurring opinion that he cannot join the majority’s interpretation of Appellate Rule 7(B).

“That interpretation is contrary to how Indiana’s appellate courts have consistently understood and applied Rule 7(B). And, for this court to address both parts of Rule 7(B) in the absence of an appellant’s own cogent argument, this court will have to become an advocate for the appellant, which is not our role,” he wrote.

“This is not a semantic or grammatical quibble. This is significant. If a court on appeal need only ‘consider’ one or the other conditions of Rule 7(B), it dilutes our standard of review. Appellate revision of a sentence under Rule 7(B) is intended to be an exception reserved for those rare cases in which the defendant can satisfy both conditions,” he continued.

But Najam agreed with the majority, which affirmed Connor’s sentence in William A. Connor v. State of Indiana, 03A05-1511-CR-1893. The COA acknowledged that Connor is need of rehabilitation and mental health treatment, but he has not taken advantage of opportunities and instead has “wandered down a dangerous path,” Robb wrote. “Given the serious nature of his offense and the fact that he has not yet demonstrated a commitment to helping himself overcome the difficult circumstances of his birth, we cannot say that Connor has persuaded us his fourteen-year sentence is inappropriate.”

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