McCullough v. State

(2) person B challenges a Class to Indiana Code section 35-48- 4-6(b)(2)(B) of the cocaine or narcotic for the reasons in that possession stated (3) opinion. possesses less than three drug pure of grains or adulterated cocaine We conclude that trial court did not drug: or a narcotic abuse discretion in admitting evidence (A) bus; on a school or arrest, following collected it Robinson’s (B) in, on, within supported by probable one thousand was cause. More- (1,000) over, reject feet of: Robinson’s constitutional challenges to Indiana Code section 35-48- (i) property; school 4-6(b)(2)(B) for the reasons cited (ii) public park; Manigault, court in at 687-90. (iii) family housing complex; judgment We affirm the of trial (iv) youth program center[.] court. Robinson contends Indiana Code 35-48-4-6(b)(2)(B) section is unconstitu- BARNES, J., CRONE, J., concur. (1) following tional for the reasons: it is vagueness void for violates rule of (2)

lenity fair requirement; notice it Proportionality

violates the of Arti- Clause I, 16,

cle Section of the Indiana Constitu- (3)

tion; it Equal violates Protection

Clause of the Fourteenth Amendment to (4) Constitution; the United States it vio- McCULLOUGH, Appellant- Steven Equal Privileges lates the of Clause Article Defendant/Cross-Appellee, I, Constitution; Section of the Indiana (5) prepare rendered him unable to v. defense, thereby denying pro- him due Indiana, Appellee- of STATE cess in violation of the Sixth and Four- Plaintiff/Cross- teenth Amendments the United States Appellant. I, Constitutions and Article Section No. 49A02-0711-CR-931. the Indiana Constitution. addressed, recently Appeals

This court has Court of in an Indiana. context, effectively identical factual June arguments same five and has found them all wanting. Manigault See (Ind.Ct.App.2008). Mani

gault, the defendant was found to be in

possession Knights at cocaine Inn

Motel, qualified “family as a housing

complex” under Indiana Code section 35-

41-1-10.5(2). case, In this Robinson was

found to in possession cocaine Inn,

Red Carpet qualifies which also as a

family housing complex. agree We are

ment with the logic Manigault reject

therefore Robinson’s constitutional IN, Halbert, Carmel, J. Attorney

Steven Appellant. for Carter, Attorney Steve General of Indiana, Talbot, Prekopa Monika Deputy General, IN, Attorney Indianapolis, Attor- neys Appellee.

OPINION CRONE, Judge. Summary

Case Steven McCullough appeals his convic- felony tions for class C criminal confine- ment, D felony confinement, class criminal A battery, and class misdemeanor as well as a habitual finding, offender on sufficien- cy grounds. and double jeopardy In a impression, matter of first brings the State a cross-appeal asserting that the trial court abused its in balancing discretion aggravating mitigating factors im- posing McCullough’s sentence and that the sentences C felony class and habit- ual offender counts inappropriately are le- light nient in of the nature of the offense and McCullough’s character. We hold that McCullough’s are sup- convictions ported by sufficient evidence but vacate felony class D confinement conviction jeopardy grounds. double We further hold that challenge the State a defen- dant’s sentence on for an abuse inappropriateness, of discretion or only but appeals defendant his sen- tence in his appellant’s brief. Because done, sentence, anyone he she about what had told his McCullough did jail, go he and she would the State’s would back merits of not reach the we do family. deal with” him and “have to his cross-appeal. Finally, McCullough Tr. drove Issues later, days home and left. Two McGuire following issues: McCullough raises the McGuire, had bruise on her left who sup- sufficient evidence I. Whether wrist, reported police. incident convictions; ports charged On June convic- his confinement II. Whether McCullough class D criminal jeopardy. tions violate double confinement, battery, Aclass misdemeanor the State raises cross-appeal, the On A and class misdemeanor domestic bat- following issue: 14, 2007, tery. the amend- On June charge of ed the information include trial court abused

III. the Whether felony criminal confinement. Four class C McCul- discretion later, days filed a of- the State habitual and his sentence lough whether allegation. fender felony inap- confinement class C light the propriately lenient of 16, the trial on During August bench his char- nature of the offense and bat- the State dismissed the domestic acter. tery McCullough charge. The found charges of guilty remaining of History Facts and Procedural At the being a habitual offender. sentenc- 13, 2007, ing hearing September on several days he three after was On June McCullough’s regarding testified witnesses McCullough insisted parole, released sentencing McCullough, character. friend, McGuire, leave her his Carol that stated, trial court him to mother’s drive with his home and car, in its found most The Court The two left McGuire’s house. recently you that violated going significant had driving. Instead of McCullough your you that house, parole, conditions McCullough showed his mother’s delinquent history of criminal and which he was con- have garage McGuire a from activity. That’s undeniable and that sidering starting detailing car business. you in need of drive, that are During began arguing. two Court finds and rehabilitative treatment screaming angry, correctional McCullough was provided by could best commit- though Even car that McGuire was scared. penal facility imposi- and that her moving, McGuire unbuckled seat- ment was sus- any reduced or sentence or get car six or tion of and tried out belt time, pension, suspended more than the Court McCullough times. Each seven depreciate her seriousness prevent left arm to from would grabbed her The victim in this matter. they crime to the of the car. When jumping out does take into consideration stop sign stoplight, or a Court stopped at victim. that this offense had put arm McGuire’s effect McCullough across Additionally, by looking your past McCullough to let asked chest. McGuire past considering the amount of time that car, he but continued her out of De- from the your between release [sic] lane. asked the center McGuire drive commis- partment of Correction her off at two differ- McCullough drop offense, you risk that houses, McCullough re- sion of this but ent friends’ crime, nature commit another McCullough that would told McGuire fused. and the circumstances of the crime com- evidence and reasonable inferences drawn mitigator The therefrom could have allowed a reasonable mitted. Court guilty find trier fact to find the defendant does and does note beyond a Id. reasonable doubt. crime resulted circumstances unlikely are to reoccur.... It’s with person A knowingly intentionally who or impose great seriousness that I this sen- confines person another without the other today. your fam- change person’s by using a consent vehicle com seen, ily hope I will continue and confinement. mits class C Ind.Code you your will not have bitterness 35-42-3-3(b)(l)(B). § A person who about I heart the sentence. heard the knowingly intentionally another touches I facts of this case. found rude, insolent, person in a man angry beyond proof met their burden of a rea- in bodily injury ner that results to another I certainty that sonable doubt. have the person commits class A misdemeanor bat being Judge need as a human and as a 35-42-2-1(a)(1). tery. Ind.Code “ my to render sentence in this matter I ‘Bodily injury’ any impairment means of heard facts the case and I made condition, physical physical including my accordingly. decision don’t make pain.” Ind.Code 35-41-1-4. recklessly. I heard the facts of the Here, presented evidence that sides, and hearing case both this is McCullough would not let McGuire out of my sentence. car despite repeated her requests and Tr. at 112-13. The trial court sentenced repeated attempts to exit the car. This is McCullough years to two for each of the sufficient evidence to he prove that con- year confinement convictions and to one Further, her. fined McGuire testified that battery conviction, for the all concurrent. during argument, their McCullough was four-year The court imposed trial a habitu- angry screaming and that when he enhancement, al offender a total sen- grabbed her pull arm to her back into the years. sixof The trial court ordered car, he “hurting” was her arm. Tr. at 24. McCullough years to serve two the De- McGuire’s arm was bruised as a result of partment of remaining Correction and the McCullough’s actions. This is sufficient years community four in a fa- corrections prove evidence to com- McCullough cility. Both parties appeal. now mitted battery. McCullough acknowledges

Discussion Decision “[technically conduct ... meets the Sufficiency I. of Evidence statutory definition of Ap confinement.” McCullough contends that there pellant’s however, Br. argues, He is insufficient support evidence to his con acting necessity that he was out victions for confinement battery. claims, reasonable, “It is and even com addressing sufficiency challenge, do mendable, McCullough did not allow reweigh the evidence or judge jump McGuire to out moving of the car.” credibility witnesses, of the and we respect Generally, Id. at 4. necessity may be the factfinder’s province weigh when, exclusive appropriate defense “under conflicting McHenry evidence. circumstances, v. force extreme conduct (Ind.2005). We that would otherwise constitute a crime is only probative consider justifiable evidence and criminal and not because reasonable inferences supporting judg greater illegal harm which the act seeks to ment. We affirm probative Id. must if the prevent.” Toops McCullough of the car. did neither. el- out traditional (Ind.Ct.App.1994). Consequently, McCullough’s claim of ne- necessity defense include: ements cessity fails. evidence There sufficient (1) must act as criminal charged support convictions. prevent significant done to have been (2) Jeopardy evil; have no ade- II. Double there must been the commission of quate alternative con McCullough argues that his (3) act; the act harm caused felony confinement and victions class C disproportionate not be must felony D double class confinement violate (4) avoided; must en- the accused harm agrees jeopardy. The State and asserts his act good-faith belief that tertain McCullough’s we should class vacate harm; prevent greater necessary to felony Based on D conviction. the State’s (5) objectively rea- such belief must concession, we class McCullough’s vacate circumstances; under all sonable felony D confinement conviction. (6) must have sub- the accused stantially contributed the creation Sentencing III. emergency. cross-appeal, argues On State Id. at 390. improperly the trial imposed necessity, a claim of negate

[T]o two-year on the class C minimum sentence at least element disprove must one count improperly confinement “and beyond reasonable the defense years only four enhanced claim of may The refute a doubt. State Ap- count.” [offender] under habitual by necessity rebut- the defense of direct Specifically, Br. at the State pellee’s 10.1 tal, sufficiency of upon the relying or that trial court its contends abused The in its case-in-chief. the evidence balancing aggravating in discretion necessity claim of whether a decision imposing in mitigating circumstances and the fact- disproved is entrusted to been McCullough’s and that the sen sentence a defendant is convicted finder. Where habitual on the class C and tences despite necessity, this court claim lenient inappropriately are offender counts only if no reverse the conviction will and the light of the nature of offense say could person reasonable to pursuant offender character of the negated by the State be- 7(B). defense Appellate Rule State Indiana a doubt. yond reasonable resen- either remand for requests we on longer a sentence tencing impose (Ind.Ct. State, 27, N.E.2d 29 v. 709 Dozier felony confinement count the class C omitted). both (citations App.1999) count. the habitual offender and Here, that McCul- the State established is time knowledge, this the first and To our of the confinement lough’s commission in a raised these issues unnecessary. Simply put, that the State has battery were State, v. Cf., e.g., Barnett cross-appeal. the car McCullough stopped have could 169, (Ind.Ct.App.2005) N.E.2d 172-73 requested, get let McGuire out she 834 and (addressing cross-appeal argument State’s McCullough gotten himself could have face of sight, appearance, or on the McCullough reply on first not file brief did " omitted). Typical- (citation response cross-appeal. Because the State's it.' Id. circumstance, may ly, 7(A) reverse in such cross- bars the State’s Appellate Rule State, prima v. error. Townsend however, we find facie prima error rule appeal, facie 972, (Ind.Ct.App.2006), trans. N.E.2d 974 843 inapplicable. "as 'at first Prima facie is defined denied. 1278 9(D) incorrectly Appellate provides

“that trial court entered cross-appeals the habitual offender enhancement as a does limit the issues separate may Ap- sentence ordered revoked therein. See Ind. raised (“An concurrently 9(D) to run sen may pellate appellee cross- case.”); present Lewis filing Appeal by without Notice (Ind.Ct. 769 N.E.2d & n. 5 raising cross-appeal appel- in the issues App.2002) (addressing State’s party lee’s brief. A must a Notice of file argument that trial erred in granting court Appeal preserve if no defendant’s motion to dismiss habitual of party appeals.”). other pertained fender it to un enhancement as Lewis, panel another of this Court lawful firearm possession serious stated, charge; violent felon trial “[W]hen Although Lewis does not contest the fails to sentence a defendant in accordance raise [the State’s issue wheth- statutory requirements, with the error is dismissing er the trial erred in may fundamental the State raise enhancement], habitual offender we note on appeal.”) (citing first time Abron v. 7(A) provides that (Ind.Ct.App. “may not initiate 1992), denied), trans. reh’g, aff'd sentence, may cross-appeal but where denied; Abron, trans. provided may ap- law.” The State (addressing N.E.2d at 637-38 State’s peal only specified those matters cross-appeal argument trial Indiana Code section 35-38-4-2. How- declining impose erred in of habitual ever, when a trial court fails enhancement; fender trial court’s fail “[A] statutory a defendant in accordance with ure to sentence a defendant accordance requirements, the error fundamental statutory requirements constitutes raise it for the first error, fundamental therefore be on appeal. time presented by the State for the time first Abron, 769 N.E.2d at 247 n. 5 upon (citing appeal.”). question then arises 638). whether Indiana prohibits law the State raising these on cross-appeal. issues To the extent Lewis suggests Ap- that 7(A) 7(A) Appellate pellate Rule provides, Indiana Rule Indiana Code Sec- “A in may defendant tion 35-38-4-2 are interrelated and Appeal Criminal bar appeal from challenging defendant’s sentence. The State a criminal de- may State not appeal initiate an fendant’s on cross-appeal except sentence, may cross-appeal but pro- error, where in cases of fundamental we respect- added.)2 7(A) vided law.” by (Emphases fully disagree.3 Appellate Rule sim- 9(A) Appellate 2. provides per- Indiana by Blakely Rule in Washington, [v. strained 542 U.S. part tinent that party appeal "[a] initiates an 124 S.Ct. 159 L.Ed.2d 403 by filing Appeal a Notice of with the trial (2004)].” Judge Id. at 1061. Vaidik relied (30) thirty days court cleric within after 7(A)'s Appellate provision on Rule that "[a] entry Judgment.” (Emphasis of a Final add- Appeal may appeal in a Criminal defendant ed.) opining the defendant's in sentence” 7(B), Appellate appel- Rule "[u]nder Indiana separate In opinion her in Combs v. may late courts not increase a defendant's (Ind.Ct.App.2006), 851 N.E.2d 1053 trans. J., (Vaidik, dissenting sentence.” Id. at 1065 denied, Judge disagreed Vaidik with ma- Combs). part) (emphasis Judge in Vaidik jority's "appellate conclusion that review of say, on to went 7(B) Appellate sentences under Rule con- is Nevertheless, cross-appeal. we from chal State’s prohibit State ply does cross-appeal, on analysis a sentence continue our to determine wheth- lenging says 35-38-4-2 noth Code Section Indiana Indiana would provisions er other law cross-appeals.4 We have all about ing at cross-appeal first prohibit such just important that it is as often stated im- may instance and whether this Court say it as what a statute does recognize pose longer appeal, sentence on as the See, recognize say. e.g., it does what case. requests State (Ind. 415, 419 Abney next We turn to the Indiana Constitu- by adopted Ct.App.2004), opinion provides tion. Article Section 6 (Ind.2005). Thus, conclude we N.E.2d 375 Appeals Court of Section 35-38-4-2 Code 7(A). bearing Appellate Rule no jurisdiction, except original shall have no by may it be authorized rules of the said, interpret Appellate That directly review deci- Supreme Court to 7(A) making as State’s agencies. In all sions of administrative cross-appeal a defendant’s sentence —at cases, appellate shall exercise other to an of discretion respect with abuse least jurisdiction terms and condi- under such case —con inappropriateness, in this or specify the Supreme tions as Court shall initiating an tingent upon the defendant shall, however, by provide rules which appellant’s in his appeal his sentence all appeal cases an absolute to one did not McCullough Because brief. 7(A) rule, sentence, by re- provided and to the extent Appellate Rule bars his 7(A) (2) judgment de- Appellate provides, or for the also "The From order fendant, upon discharge be- motion may appeal of a his not initiate an sen- tence, delay his trial not caused his provided cause where but act, upon jeopardy, plea of former only may appeal those law.” The State presented upon prior to trial. ruled specified in Code matters 35-38- (3) granting From an order a motion to [Lewis, 5]. 4-2. See 769 N.E.2d at n. errors. correct addition, when also state, (4) question Upon reserved a trial fails to sentence a defendant in acquitted. the defendant is statutory requirements. with accordance (5) granting From an a motion to order None include increas- Id. of these reasons evidence, effect suppress if the ultimate ing a defendant’s sentence because it preclude prosecution. further the order is inappropriate. (6) any interlocutory order if the trial From J., (Vaidik, dissenting part). n. 13 We Id. certifies the court on Judge Vaidik agree petition judge thereof finds on that: 7(B) implicate Blalcely least with does not —at (A) appellant ex- the will suffer substantial respect to committed after Indiana’s crimes damage, pense, injury order if the is response in scheme was amended determination thereof is erroneous Blakely respectfully April we in 2005—but judgment; until withheld after ap- disagree with her conclusion that Indiana (B) ques- the order involves substantial may pellate not increase a defendant’s courts law, early of determination of tion 7(B). pursuant Appellate sentence promote orderly disposi- will a more which case; of the tion reads as 4. Indiana Code Section 35-38-4-2 (C) remedy by appeal judgment after follows: inadequate. otherwise Appeals supreme court or to the added.) only (Emphases We observe not that pro- appeals, if the rules contemplates court so specifically that the statute vide, may by taken the state in the follow- be be raised in an issues would these ing is- by cases: but also that these initiated ever, (1)From subject granting rarely, be if an order motion sues could cross-appeal. dismiss an indictment or information. 1280 (1967)). Study revision of

view and sentences defen Commission 140 The stat- cases.[5] establishing in criminal ute Ap- dants all Court of Criminal peals England provides, in of our authority The extent constitutional against On the Court sentence revise review and sentences defined shall, they Criminal think Appeal that 7(B): Appellate in Indiana “The a different sentence have should been by revise a Court sentence authorized passed, quash the passed if, statute after due consideration of the trial, such pass other sentence war- decision, trial court’s the Court finds that (whether in ranted law the verdict inappropriate fight the sentence is of the severe) more or less in substitution nature of the offense and the character of they ought think therefore as to have Nothing the offender.” in either of these passed, been and in other case shall provisions prohibits the State cross- appeal. dismiss the appealing a defendant’s sentence. Act, 1907, Id. (quoting Appeal 7 Criminal Likewise, nothing pro in either of these 4(3)) 7, added). Edward ch. 23 (emphasis visions prohibits imposing this Court from The Serino further noted longer imposed by than drafters the revised Article trial correctly court. As the State ob provided explicitly for reference to cer- serves, “[imposing higher sentence on tain historical materials to assist in in- novel Anglo-Saxon juris is not its terpreting meaning: report “The prudence.” Appellee’s In Br. at 13. Seri Study the Judicial Commission (Ind.2003), no v. 798 N.E.2d 852 our comments to article contained there- supreme court discussed the constitutional in may be consulted the Court of authority of Indiana’s appellate courts to underlying Justice to determine the rea- review and revise The sentences.6 Serino sons, purposes, policies of this arti- noted of the drafters guide cle and used as a revisions to Article 7 of Con application.” construction stitution relied on the Indiana Judicial Study report, states, 7, Commission’s which Id. Ind. (quoting Const. art. Schedule “ (Michie ed.)) ‘The proposal appellate power Thus, although neither criminal power cases include the to review Article Section 6 of the Indiana Consti 7(B) sentences is based the efficacious use to tution nor specifically power put by has been impose authorizes this Court to a “more ” Court of Appeals England.’ Criminal severe” sentence on appeal, believe Id. (quoting Report at 856 Judicial that such an authorization specifically states Anglemyer, dissent that Article Section 6 the dissent's reliance on "expressly provides for the 'review and revi- in which a criminal defendant sion of sentences for in all criminal appealed defendants being his sentence as severe. too added). (Emphasis cases.’ There is no men- light presented Anglemyer, of the issue it is challenge tion of the State's a defen- hardly surprising supreme that our court did language dant's sentence. This indicates to right not the "indicate State has a to chal- me appeal that the to sentences was lenge being a as defendant's sentence too Op. intended to benefit at defendants.” 1285 J., (Barnes, Op. lenient.” concurring 1285 (Barnes, J., concurring part). in result We part). in result in phrase believe that the "for defendants” merely modify to serves "sentences” and that supreme authority 6. Our court’s review power our constitutional to review and revise may be and revise by sentences invoked sentences derives from Article both defendants unpersuaded and the State. We are likewise Section 4 of the Indiana Constitution. a class A felo- importantly, the minimum sentence for by and, more contemplated — by specifically prohibited not ny), years suspended was with two thereof —the the Article Section drafters of probation, and ordered to be the sentences Court, Ap- Supreme drafted consecutively for a total executed served Rule 7.7 pellate years. of hundred term one On fact, im- supreme recently our court In Court, claims, Monroe raised several of a posed a more severe sentence each including inappropri- that his sentence was A sex- five class deviate defendant’s ate of the of the offenses light nature response to his convictions ual conduct panel and his character. of this Another his sentence to review and revise request Court affirmed convictions and Monroe’s 7(B). Appellate Rule Monroe pursuant to sentence. (Ind.2008). 886 N.E.2d 578 granted Our court Monroe’s supreme Monroe, the trial sentenced the de- court only petition to transfer and addressed twenty-two of years imprison- fendant (i.e., years two sentence claim. The court inappropriate on each count above ment 6.429(A) ("A to cor- have taken differ- Mich. Court Rule motion 7. We note that other states may by approaches regarding whether under rect an invalid sentence be filed either ent may may ap- party. sen- government The court correct an invalid what circumstances the sentence, tence, may modify court well but the valid peal a criminal defendant’s as except imposed has circumstances an sentence after it been as whether under what law.”); § provided by 29-2320 may court increase or decrease Neb.Rev.Stat. appellate ("Whenever guilty Compare a defendant of a Ind. is found sentence. 12.55.120(b) with, ("A felony following entry plea § a trial or the e.g., Alaska sen- Stat. lawfully imposed by tendering plea imprisonment guilty of re, or of nolo contende- of tence appealed prosecuting attorney charged the with superior may the the the court be prosecution may appeal appeals by ground on the of such defendant the of the state court however, lenient; reasonably imposed attorney sentence if such the sentence is too believes, all circum- appealed the based on the facts and a sentence state when case, sentence, particular appealed the that the sen- the stances of the defendant lenient.”); excessively N.Y. Law the tence is court is not authorized increase 450.30(2) ("An appeal people § may approval by the from a express its or dis- but sentence only upon ... be based approval and its reasons in sentence of sentence ground was invalid as a opinion.”); Ann. that such sentence written Del.Code tit. law.”); 9902(f) ("The Ann. matter of Pa. Cons.Stat. § State shall have an absolute 9781(a) ("The § or the Common- appeal any grounds on the defendant right to sentence to, legality contraiy may appeal as of of by, wealth it is unauthorized or sentence.”); rule, § R.I. 12-19.3-4 Gen. Laws or court in which case the deci- statute ("Within (20) imposition twenty days of the shall affect or result the State’s sion accused.”); presumptive Supreme which is outside the rights of the Ill. sentence offense, 615(b) ("On range attorney reviewing sentencing for the Court (4) punishment general, imposes the court a less severe may ... im- reduce defendant, added); sentence, court”) impos- (emphasis or the if the by the trial posed sentence, IE, 4(b) ("The may appeal the § es a severe Laws com- more Mass. Gen. ch. monwealth, supreme in accordance approval sentence to the personal with of the procedures the su- established attorney general attorney, district or a court.”); (1) § preme Ann. 40-35- Tenn.Code if: appeal an otherwise final sentence 402(a) law; (2) ("The attorney general in a district imposed was in violation length, may appeal from the an criminal case imposed was as a result of the sentence range of the sen- guide- manner of service application sentencing incorrect lines; (3) court[,]” lim- imposed departure downward from (b) of conditions in subsection guideline range ited to seven applicable was abuse 44.01(b) ("The statute); discretion; (4) Tex.Code Ann. imposed in a a sentence case state entitled to for there is no sentenc- an offense illegal.”). unreasonable."); ground that the sentence is guideline plainly the ing and is 1282 although impose aggregate

observed that the trial court had more severe circumstances, “if, aggravating identified after due consideration of the trial three decision, court’s finds that the obligation had failed to fulfill its ex- Court justified inappropriate light sentence is plain why those circumstances nature of offense and character of opposed “consecutive sentences as to en- pursuant Appellate the offender” Rule hanced concurrent sentences.” Id. 580.8 7(B). 7(A) Appellate prohib- Because Rule The court the trial court concluded however, its State’s cross-appeal, improperly had sentenced Monroe and McCullough’s affirm sentence.9 authority elected to exercise to review pursuant and revise the sentence to Article part part. Affirmed and vacated Section Indiana Constitution 7(B). BRADFORD, J., concurs. Appellate Rule The court deter- mined that nature of the war- offenses BARNES, J., in result with concurs enhanced, ranted but not sen- consecutive separate opinion. tences, history and that Monroe’s criminal BARNES, Judge, concurring part and justify did not consecutive sentences. concurring in separate result in with part Consequently, imposed the court maxi- opinion. mum term fifty-year for each of the five class A felony convictions and ordered that I majority’s concur conclusions concurrently, served with regarding sentences be the sufficiency of the evidence however, trial court determine “to what ex- jeopardy. disagree, and double I tent any portion of the majority’s sentence should be as to the conclusion that under suspended probation.” Id. at permit- 581. certain circumstances the State challenge ted to a defendant’s sentence on We regarding make two observations cross-appeal. I would conclude that our supreme opinion court’s in Monroe. challenge sentence on The first is the court imposed more legal the absence author- count, severe on each notwith- ity expressly authorizing it to do so. standing request Monroe’s to reduce those concur in result regarding McCullough’s although sentences. second is that sentence because it unchanged. remains ultimately imposed more le- sentence, 7(A)10 nient aggregate nothing it said Appellate prohibits appellate an indicate that the State from initiating that, 8. The Supreme court observed that Monroe had "com- 9. “Our held Court has in the legislature multiple felony mitted event of simultaneous his crimes before the convic status, finding tions and of habitual offender sentencing amended [in Indiana's statutes impose resulting pen trial must provide 'advisory 2005] to sentences' rath- ” alty upon only enhancement one of the con ‘presumptive er than "[t]hus sentences’ specify and must victions the conviction to be prior presumptive sentencing ap- scheme so enhanced.” Rickert v. Monroe, plies in this case." 886 N.E.2d at (Ind.Ct.App.2007) (citing Carter v. Here, McCullough 579. under sentenced (Ind. 1997)). In this advisory sentencing current scheme. We case, specify the trial court did not which of legislature's do not that the believe amend- the two was to be en convictions ments to Indiana's had statutes hanced. Because we have vacated one of authority effect on our to review and convictions, those we need not remand for pursuant revise sentences to Article Section resentencing. 6 of Appellate the Indiana Constitution and 7(B). Curiously, the State does not refer to 7(A) in its brief. (4) question by a the Upon me that State reserved indication to sentence —an Rule, state, acquitted. if the defendant is extremely limited. This are appeals however, to “cross- the State does allow (5) a motion granting From an order Ap- law.” Ind. provided where appeal evidence, if ultimate suppress the added). 7(A) (emphasis pellate preclude the order is to fur- effect of majority interprets Appel-

The ther prosecution. 7(A) limiting right as the State’s late Rule (6) if any interlocutory order From sentence to cross-appeal defendant’s the the court trial court certifies and has initiated in which the defendant cases judge on appeal on or a thereof finds of his or her sentence.11 Howev- appeal an petition that: er, has I am not convinced that State (A) appellant will suffer sub- a defendant’s sen- right cross-appeal injury expense, damage, or stantial majori- Contrary case. order is and the erroneous opinion, the issue is not ty’s analysis, my withheld determination thereof is expressly prohibited the State is whether judgment; until after on challenging a defendant’s sentence (B) the order involves a substantial language on the cross-appeal. Based law, question early determi- 7(A), per- which will a more promote nation of “pro- where mits the State case; orderly disposition law,” I the issue is wheth- believe vided (C) remedy after by appeal expressly Indiana law allows such er inadequate. judgment is otherwise reasons, I For conclude challenge. several not. that it does addressing prior of this version 35-38-4-2 de- statute, Indiana Code Section acknowledged supreme our in which the limited circumstances prosecute scribes limited the State’s provides: appeal dependant legisla- a criminal is 260 Ind. Sierp, tive enactment. State v. court or Appeals supreme to the (1973). appeals, if the court rules so Sierp observed: by the may be taken state provide, following cases: speaking, the common “Generally under (1) granting an From order motion law understood and administered an indictment or informa- to dismiss the state States country, or United tion. had to an or writ no (2) judgment From an order or for appre- It is error in criminal cases. defendant, his upon motion a policy reason such hended that the delay of discharge because of his trial that, when was built on idea act, upon plea caused his sovereign brought capacity state in its jeopardy, presented of former tribunals, its its own before citizen into upon prior ruled to trial. officers, and in to its own own obedience lost, (3) hand processes, avenging granting a motion From order except in unusual cases stayed to correct errors. should applying plicable." Op. 1277 n. When holding Appel- 1. Based on its that Indiana 7(A) only permits the State to cross- holding, late majority's would conclude challenged where the defendant prima applicable and standard facie appeal, majority her his or sentence on simply did its burden. not meet prima “inap- rule that the facie error 1284 to power appeal express- rily

where the is no fundamental impermissible, there ly conferred.” error. 60,

Sierp, 260 292 at 246 7, 6, Ind. at N.E.2d Article Section Indiana Con- 1137). (quoting 92 A.L.R. con- The court expressly for provides stitution the “review right “that is appeal cluded the state’s to and revision of sentences for in defendants Id., added). statutory only....” 292 at 247. (Emphasis N.E.2d all criminal cases.” is no mention right There of the State’s to Here, challenge the State’s of McCul- challenge a sentence. defendant’s This lough’s any sentence does fall into indicates language to me to categories forth in set Indiana Code appeal sentences was intended to benefit Thus, my opinion, 35-38^1-2. Section defendants. statutory authority there is no for the McCullough’s State attack sentence. constitution, a reading Such of the I mentions, the majority As the statute does believe, is Anglemyer consistent with v. expressly address the issue of cross- State, (Ind.2007) (em- 482, N.E.2d 868 491 However, appeals. generally statute added), which, phasis referring appeals “may limits be taken 7(B), Appellate supreme Indiana our § state.” Ind.Code 35-38-4-2. This is stated, court “It is on this basis alone that I language, broad and believe it applies challenge criminal now defendant any in which circumstance is State point his or her sentence ....” At no does prosecuting appeal regardless an wheth- the Anglemyer court indicate the State has initiating er the State is an challenge a defendant’s sentence see cross-appealing. logic pro- little being as too lenient. hibiting the from initiating State an Similarly, supreme our challenging a defendant’s sentence on the changed appellate the standard of review hand, one as Code Section 35-38- “manifestly to “inap unreasonable” 7(A) do, Appellate 4-2 and Indiana propriate” step as “to provide modest

while on the hand allowing other more realistic issues.” challenge on cross-appeal State, (Ind. Serino 856 long as defendant raised sen- 2003). so, In doing supreme our tencing appeal. issue on observed, places “[t]his formulation central

I also do not believe the fundamen- trial judge, focus on role of the while doctrine, tal error which we to reserving have used for appellate challenge allow the illegal State to sen- chance review the in a matter climate appeal, appli- the first time on is more distant from local clamor.” Id. at cable here. See Abron v. change 856-57. This ap review does not (“We N.E.2d (Ind.Ct.App.1992) pear to have been intended to allow the need not determine whether the falls easily issue State to more advocate that a defen 35-38-4-2], however, within legally [I.C. permissible be- dant’s sentence was too cause a trial Instead, court’s failure to lenient. I believe our supreme defendant in statutory court, accordance with drafting re- quirements error, 7(B) constitutes cases, fundamental applying it in numerous presented by correcting therefore concerned sentences that time upon appeal.”), first are too severe. See Combs v. (Vaid trans. allega- 1053, 1065 denied. there (Ind.Ct.App.2006) Because is no tion that ik, J., (“Indeed, McCullough’s dissenting) sentence is statuto- Appellate Rule 7(B) specific. a defen- lenient state Indiana’s consti- as a vehicle reduce is used sentence.”), tution, statutes, rules, trans. govern- dant’s denied. and caselaw ing Likewise, sentencing unique. are majority’s on I reliance also believe not issue is whether the State’s challenge (Ind.2008) State, 886 N.E.2d 578 Monroe v. of a amounts to double jeopar- sentence that Monroe does not hold misplaced. dy do not contend does. The to challenge authorized a de- State is —I jurisdictions references to other are being inappropriate. fendant’s sentence persuasive to whether the to me as State is contrary, To at issue Monroe was authorized pursue cross-appeal to of a claim that his sentence was defendant’s Moreover, defendant’s sentence in Indiana. inappropriate. Monroe presumptive to the pursuant sentenced plain I believe language based on scheme, required the tri- 7(A) that the Appellate Rule the three aggravating al court to balance must be law before authorized it can against circumstances non-existent pursue challenging defen- mitigating circumstances. trial court dant’s the State nor sentence. Neither years eight less than sentenced Monroe majority point authorizing such au- each count presumptive on but ordered thority. Accordingly, although allowing sentences, supreme and our consecutive the State to a defendant’s sentence observed, “Indeed we find it ironic has an initial undeniable “sauce for the finding aggravating cir- despite a goose, gander” for the attractive- sauce cumstances, im- the trial nonetheless ness, I agree cross-appeal may do not posed presumptive than the sentence less nothing be made there is simply because Although count.” Id. at 580. our each prohibiting my It is belief that it. supreme imposed a more sen- severe jurisprudence heavily in the leans direction count, it did so tence on each at least appeal. my In allowing such part initially the trial court erro- because opinion, majority’s holding chills the aggravators miti- neously weighed the sentences. defendants gators. supreme court also modified Our otherwise, leg- either our Until directed that the on each sentence so court, I conclude supreme islature our concurrently. count Fur- would be served challenge permitted State is not ther, Monroe’s total sentence was reduced cross-appeal in a defendant’s sentence on years. years fifty executed reason, I con- any circumstance. For my supreme opinion, imposition our court’s majority’s cur in result conclusion hardly supports reduced affirming McCullough’s sentence. proposition that the State has the being challenge a sentence as too lenient. inapposite ques-

I believe Monroe today.

tion us before majori- persuaded am also not

ty’s to various reference state’s statutes ability this issue. The of the address being

state to a sentence as too notes

Case Details

Case Name: McCullough v. State

Court Name: Indiana Court of Appeals

Date Published: Jun 30, 2008

Citation: 888 N.E.2d 1272

Docket Number: 49A02-0711-CR-931

Court Abbreviation: Ind. Ct. App.