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Judge’s revocation of plea deal, longer sentence affirmed

February 28, 2018

A man convicted of negligence resulting in the death of this 3-month-old son lost his appeal Wednesday, failing to show that a judge erred in revoking his plea agreement before sentencing, which led to a longer sentence when he was convicted after a trial.

Jarod Thomas McMillan had pleaded guilty to eight counts of neglect of a dependent for failing to provide food and medical care for Kannon McMillan, who the record says gained just four ounces in the months he lived after birth. In pleading guilty, McMillan’s sentence was left to the discretion of the judge, but any sentences would run concurrently.

Lake Superior Judge Samuel Cappas accepted the plea agreement, but he revoked it at sentencing when he found that McMillian had asserted his innocence to Level 1 felony neglect. McMillian stood trial, was convicted, and he was sentenced to a prison term more than eight years longer than the maximum 40-year term he could have received under terms of his plea deal.

The Indiana Court of Appeals affirmed Wednesday in Jarod Thomas McMillan v. State of Indiana, 45A04-1708-CR-1819.

“We find that the trial court acted within its discretion when it revoked its acceptance of McMillan’s plea agreement. When McMillan was asked at the hearing if he thought Kannon needed medical help, McMillan answered that he was ‘used to [his] kids being small’ and that he ‘didn’t think that it was anything . . . different from [his] first two sons as far as eating and gaining weight,’” Chief Judge Nancy Vaidik wrote for the panel. “... In short, McMillan, on several occasions, expressed that he thought Kannon was ‘going to come along’ and that he ‘would bring [Kannon’s] weight up.’ ... In other words, McMillan did not think that there was anything wrong with Kannon. In fact, McMillan was adamant that he fed Kannon and declared to the court: ‘I did not starve [Kannon]. I fed him.’

“The trial court found that ‘the essence of the case’ was whether McMillan subjectively knew that Kannon was at risk or in danger, and the court said that was the evidence it was looking for but had not heard,” Vaidik wrote. The court, therefore, did not abuse its discretion in revoking McMillan’s guilty plea at sentencing.

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