Supreme Court to consider sentence modification question

January 22, 2018

The Indiana Supreme Court will consider a sentence modification question that is also getting attention from the Indiana General Assembly when it hears oral arguments this week.

The high court will hear the case of State of Indiana v. Pebble Stafford, 39S04-1712-CR-00749, at 9:45 a.m. Thursday. The central question in the case is whether courts have discretion to modify sentences that both parties agreed to pursuant to a fixed-sentence plea agreement.

In an October opinion, the Indiana Court of Appeals said “Yes,” determining that language in Indiana Code section 35-38-1-17(l) prohibits all forms of sentence modification waivers, even waivers that are inherent to the nature of fixed pleas.

The language of section (l) came about as part of the 2014 criminal code reform legislation, and lawmakers are now saying the appellate court’s interpretation of that language did not align with their legislative intent. Thus, Senate Bill 64 was filed to allow for fixed plea modifications only with prosecutorial consent.

Also on Thursday, the justices will consider whether to grant transfer to the case of Christopher K. Kesling, et al., v. Andrew C. Kesling, et al., 46A03-1701-MI-00064. That case addresses the question of whether three siblings who co-own a family business with their brother, Andrew Kesling, can pursue a direct action against Kesling.

A divided Indiana Court of Appeals upheld summary judgment for TP Orthodontics, Inc. – the Kesling family business that Andrew owns 51 percent of – finding Andrew’s three siblings failed to prove the exception under Barth v. Barth, 659 N.E.2d 559, 560 (Ind. 1995) allowed them to bring a direct action against their brother. Judge Michael Barnes dissented.

Oral arguments in the Kesling case will begin at 9 a.m. Thursday.


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