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Tuesday, February 10, 2009

Ind. Decisions - Supreme Court issues one today

In Steven McCullough v. State of Indiana, a 12-page, 5-0 opinion, Justice Dickson writes:

We grant transfer and hold (1) in the exercise of the appellate authority to review and revise criminal sentences, a court may decrease or increase the sentence; (2) the State may not by appeal or cross-appeal initiate a challenge to a sentence imposed by a trial court; and (3) if a defendant seeks appellate review and revision of a sentence, the State may respond and urge the imposition of a greater sentence without the necessity of proceeding by cross-appeal. * * *

We granted transfer to address whether an appellate court may increase a sentence and whether the State may by cross-appeal initiate a challenge to the trial court's sentence. * * *

1. Imposing Longer Sentences on Appellate Review

We first consider whether an appellate court, in reviewing and revising a criminal sentence pursuant to authority derived from Article 7, Section 4 of the Indiana Constitution, may impose a more severe sentence than was ordered by the trial court. Section 4 provides in pertinent part: "The Supreme Court shall have, in all appeals of criminal cases, the power . . . to review and revise the sentence imposed." In addition to Section 4, Article 7 also includes Section 6, which authorizes the Court of Appeals to "exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules which shall, however, provide . . . to the extent provided by rule, review and revision of sentences for defendants in all criminal cases." * * *

Under the plain language of the Indiana Constitution, the Court is granted the ability to revise a sentence. The word "revise" is not synonymous with "decrease," but rather refers to any change or alteration. With no specific prohibition against increasing a sentence on appeal appearing in the text of Section 4, and the history of the provision indicating that the framers chose to adopt the language of the 1962 ABA Model Judicial Article, which intended to emulate the British system, which at that time authorized the increase or decrease of criminal sentences on appeal, we hold that the appellate review and revise authority derived from Article 4 of the Indiana Constitution likewise includes the power to either reduce or increase a criminal sentence on appeal.

2. The State's Challenge of the Defendant's Sentence on Cross-Appeal

The defendant did not request that the Court of Appeals review or revise his sentence. The State, however, on cross-appeal seeks a remand for resentencing due to the alleged inadequacy of the trial court's sentencing statement and the insufficient length of its sentence or, in the alternative, requests that the defendant's sentence be revised on appeal and a longer sentence imposed.

The State's authority to appeal a trial court's sentencing determination is restricted by Indiana Appellate Rule 7(A), which provides:

A defendant in a Criminal Appeal may appeal the defendant's sentence. The State may not initiate an appeal of a sentence, but may cross-appeal where provided by law.

App. R. 7(A) (emphasis added). The State identifies no provision of law that authorizes it to challenge a sentence by cross-appeal under Appellate Rule 7(A). * * *

We conclude that the State may not by appeal or cross-appeal (a) initiate a challenge to a trial court's criminal sentence that is within the court's sentencing authority or (b) seek appellate review and revision of such sentence. When a defendant requests appellate review and revision of a criminal sentence pursuant to authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution, however, the reviewing court is presented with the issue of whether to affirm, reduce, or increase the sentence. As to this issue, the perspectives of both the defendant and the State will be helpful. Thus, the State's appellee's brief, when responding to such a request for sentence review and revision from a defendant, may, if desired, present reasons supporting an increase in the sentence without the necessity of proceeding by cross-appeal. In the present case, however, the defendant does not seek appellate review and revision of his sentence, and thus the State is precluded from seeking an increase in this sentence.

3. Resolution

The judgment of the trial court is affirmed in part and vacated in part, as directed by the Court of Appeals. McCullough, 888 N.E.2d at 1282.

Shepard, C.J., and Sullivan, J., concur.
Boehm, J., concurs and concurs in result with separate opinion, in which Rucker, J., concurs in Part II.

[J. Boehm's concurrance begins:] I concur in Part I of the majority opinion and agree with the portion of Part II holding that the State is not authorized to challenge a sentence by cross-appeal. I also agree with the result reached by the majority, namely that McCullough's sentence remains as entered by the trial court. I reach that result through a somewhat different path.

[ILB Note: I'm not clear as to what is J. Rucker's opinion with respect to Part I.]

This opinion is particularly interesting because it interprets the Indiana Constitution, not using the Debates of 1850, but the more recent documents of the 1960s and early 1970s. For example, from p. 3 of the opinion:
When it is necessary to interpret our state constitution, we look to "the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions." [cites omitted]

The text of Section 4 provides no explicit direction as to whether the power to revise a sentence authorizes sentence increases as well as reductions. We thus look to the intent of its framers and the history surrounding its drafting and adoption. Section 4 was part of a constitutional amendment that was ratified by the voters in 1970, to become effective in 1972, as part of the rewritten judicial article, Article 7. The new judicial article, including the appellate review and revise authority, resulted from the efforts of the Judicial Study Commission, created by the Indiana General Assembly to study the needs of the state for revision of the judicial system, to continuously survey and study the judicial system's operation, and to submit suggestions or recommendations for changes to the judicial system. Act of March 3, 1965, Ch. 47, 1965 Ind. Acts 77. The Commission's work on the revised Article began in 1965 and culminated with its 1966 proposal of the new judicial article.

Also interesting, the Court has sent out a press release summarizing the opinion. The ILB has added emphasis:
The Indiana Supreme Court today ruled that when a defendant's criminal appeal seeks a sentence reduction claiming that the sentence is inappropriate, the Court may increase or reduce the sentence, or leave it unchanged.

Today's ruling came in a case where the defendant's criminal appeal did not ask for a sentence revision but challenged his conviction on other grounds, and the government responded with a request for the Court to increase the sentence. While expressly recognizing for the first time that the Indiana Constitution gave it the power to increase sentences, the Court held that because the defendant was not seeking a sentence reduction, the government could not seek one either.

The Supreme Court agreed with an earlier decision of the Indiana Court of Appeals denying the defendant's claims, that the sentence is inappropriate and thus affirmed the 2007 Marion County convictions for criminal confinement, battery, and being a habitual offender, and his resulting six-year sentence.

Posted by Marcia Oddi on February 10, 2009 11:31 AM
Posted to Ind. Sup.Ct. Decisions