Steven McCULLOUGH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
No. 49S02-0809-CR-508
Supreme Court of Indiana
Feb. 10, 2009
745
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Transfer from the Indiana Court of Appeals, No. 49A02-0711-CR-931
DICKSON, Justice.
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.
The defendant, Stephen McCullough, was convicted of class C felony Criminal Confinement, class D felony Criminal Confinement, and class A misdemeanor Battery, and was found to be a habitual offender. The trial court had ordered a two-year sentence for each of the two confinement convictions and one year for the battery conviction, all to be served concurrently, plus a four-year habitual offender enhancement, for a total sentence of six years, two of which would be served in the Department of Correction and four years in a community correction facility. In this direct appeal, he raises claims of insufficient evidence and double jeopardy but does not seek appellate review of his sentence. The State has cross-appealed, asserting that the trial court abused its discretion in balancing the aggravating and mitigating factors and that the sentence imposed for the class C felony and habitual offender counts were inappropriately lenient in light of the nature of the offense and the character of the offender. The Court of Appeals held that (1) the convictions were supported by sufficient evidence; (2) the class D felony confinement conviction must be vacated on double jeopardy grounds; (3) the Indiana Constitution‘s provision authorizing appellate courts to review and revise criminal sentences specifically contemplates that an appellate court could impose a more severe sentence; and (4) the State may not by cross-appeal challenge a defendant‘s sentence for abuse of discretion or inappropriateness unless the defendant appeals his sentence. McCullough v. State, 888 N.E.2d 1272, 1276-81 (Ind.Ct.App.2008). While vacating the conviction and concurrent sentence for class D felony confinement, the Court of Appeals affirmed the trial court‘s resulting enhanced sentence as to the other counts. Id. at 1282. 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. As to the issues of evidence sufficiency and double jeopardy, we summarily affirm the decision of the Court of Appeals.
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
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.” State v. Monfort, 723 N.E.2d 407, 409 (Ind.2000) (internal quotation marks omitted); see also Alpha Psi Chapter v. Auditor of Monroe County, 849 N.E.2d 1131, 1135 (Ind.2006); State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.2002); Ajabu v. State, 693 N.E.2d 921, 929 (Ind.1998).
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.
At the December 9, 1965, first meeting of the Judicial Study Commission, a three-member committee, consisting of C. Ben Dutton, chairman, Representative Robert V. Bridwell and William M. Evans, was assembled to recommend changes to the existing judicial article. Minutes from the Organization Meeting of the Judicial Study Commission, at 4 (Dec. 9, 1965).1 By April 27, 1966, the Commission had adopted a formal resolution “that the committee heretofore appointed to draft an amendment of the judicial article in the Indiana Constitution is requested to draft a general judicial article embracing the full scope of the judiciary instead of specific changes in separate amendments.” Minutes from a Meeting of the Judicial Study Commission, at 2 (Apr. 27, 1966).
The Commission‘s minutes and reports reveal little as to the Commission‘s intent
In the Commission‘s proposed revision of Article 7, the operative text of both Sections 4 and 6 include language that substantially corresponds to the ABA model article. Both the proposed Section 4 and Section 2, Paragraph 2(B) of the ABA model article grant appellate power “to review and revise the sentence imposed.” See Text of the ABA Model State Judicial Article, reprinted in 47 J. Am. Judicature Soc‘y 6, 9 (June 1963). And the Commission‘s proposed Section 6 substantially mirrors Section 3 of the ABA version. Both provisions would authorize the Court of Appeals to “exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules” that include the authority to review and revise sentences in criminal cases. Compare id. with 1966 JUDICIAL STUDY COMM‘N REP. 141. Of particular significance is the fact that the Indiana Judicial Study Commission‘s commentary to its proposed Section 4 is identical in language to comments published by the ABA in 1962 in support of its model provision. The ABA explained: “The proposal that the appellate power in criminal cases include the power to review sentences is based on the efficacious use to which that power has been put by the Court of Criminal Appeals in England.” Text of the ABA Article, supra, at 9. This ABA language was utilized in its entirety by the Commission in its report, and it represents the only commentary the Commission employed to support the grant of review-and-revise power. See 1968 JUDICIAL STUDY COMM‘N BIENNIAL REP. 10.
As of the time the ABA approved and issued its Model Judicial Article, the British statute establishing the Court of Criminal Appeal provided:
On appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.2
Criminal Appeal Act, 1907, 7 Edw. 7, c. 23, § 4(3) (emphasis added).3
In 1967, the Indiana General Assembly began the constitutional amendment process, passing House Joint Resolution 6.4 As to appellate review and revise authority, the legislature precisely followed the recommendation of the Judicial Study Commission. Compare Act of March 6, 1967, ch. 375, 1967 Ind. Acts 1360-61 with 1966 JUDICIAL STUDY COMM‘N REP. 5-6. In its 1968 Biennial Report, continuing the process of constitutional amendment, the Judicial Study Commission again suggested the same language in regard to review and revise in both the proposed amendment and its commentary. 1967-1968 JUDICIAL STUDY COMM‘N BIENNIAL REP. 9-10. In 1969, the Indiana General Assembly passed House Joint Resolution 12, employing identical language as to granting appellate review and revise authority. Act of March 10, 1969, ch. 457, 1969 Ind. Acts 1847-48. This resolution expressly authorized that the report of the Judicial Study Commission be consulted for purposes of judicial construction and application of the amendment. Id. at 1853. The amendment to the Indiana Constitution was ratified by the voters on November 3, 1970, and became effective January 1, 1972.
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
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
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.
The State‘s cross-appeal asserts that the trial court abused its sentencing discretion and also seeks appellate revision on grounds that the sentencing is inappropriately lenient in light of the nature of the offense and the character of the offender. Although the State does not claim that the sentence is invalid as contrary to the trial court‘s statutory sentencing authority, we observe that where a trial court fails to sentence a defendant in accordance with statutory requirements, the State may raise such a claim for the first time on appeal. Stephens v. State, 818 N.E.2d 936, 939-40 (Ind.2004).
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
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.
BOEHM, Justice, concurring and concurring in result.
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.
I. The Genealogy of Indiana‘s Judicial Article
Justice Dickson‘s opinion for the majority uncovers a rich and interesting history of the events leading up to the 1970 adoption of a revised
As one who graduated from law school in 1963 and was a practicing lawyer in Indiana throughout the period leading up to the voter‘s adoption of this amendment, I cannot altogether separate my own impressions of this period from the paper trail that Justice Dickson outlines. I ultimately reach the conclusion that he does: the language of
I believe the history of the 1970 amendment demonstrates that appellate review was to be encouraged, but also indicates a strong disposition against upward revision of sentences. First, I do not think these issues were carefully considered by either the study committee, the legislature, or the voters. The public discussion of the revisions to Article 7 focused on the selection process for the appellate bench, which changed Indiana from a state that chose its appellate judges by contested partisan election every six years to the merit selection plan we now have. The authors and proponents of this were civil lawyers. I knew the three members of the study commission that recommended adoption of the American Bar Association proposal to authorize appellate review of sentences. C. Ben Dutton, William M. Evans, and Robert V. Bridwell were all well-known Indianapolis attorneys engaged, so far as I recall, either exclusively or overwhelmingly in civil practice. A search of the attorneys field in reported cases confirms this. All three, like me, were educated at a time when the conventional wisdom in the United States was that sentencing was a trial court function, best left to the judge who is most familiar with the defendant and the
We are, however, explicitly instructed to consider the Commission‘s report in construing this constitutional provision. In the Joint Resolution agreeing to the proposed amendment, the General Assembly advised that “[t]he report of the Judicial Study Commission and the comments to the article contained therein may be consulted by the Court of Justice to determine the underlying reasons, purposes and policies of this article and may be used as a guide in its construction and application.” H.J.R. 12, 96th Gen. Assem., Reg. Sess., Ind. Acts, Ch. 457, at 1853 (Mar. 10, 1969). The Indiana Judicial Study Commission‘s endorsement of the ABA Model Judicial Article is therefore relevant.
And what should we make of the ABA recommendation? It was not that appellate courts should review and revise sentences. Rather it was that sentences should be subject to appellate review “under such terms and conditions as the [state] Supreme Court shall specify by rules.” In other words, this proposal contemplated a fleshing out of the procedures and conditions that would govern an appellate court‘s review and revision of sentences. It explicitly asked the voters adopting this provision as a constitutional amendment to give the state Supreme Court the authority to prescribe whether and how this appellate function should be carried out. As the majority points out, the ABA commentary, adopted by our study commission, explained that “[t]he proposal that the appellate power in criminal cases include the power to review sentences is based on the efficacious use to which that power has been put by the Court of Criminal Appeals in England.” Op. at 748.
II. Revision of Sentences
I agree with the majority that the British background at the time is therefore significant but I draw a different conclusion from that background. Although a 1907 English statute explicitly authorized an upward or downward revision, as the majority notes, by the time Indiana considered this issue in the 1960s, the British courts had virtually abandoned upward revisions. It seems reasonable to infer that the working assumption of the proponents of the ABA Model was that American judges would come to the same conclusion, and would undertake appellate review of sentencing but largely, if not completely, abandon upward revisions.
As we have noted before, a principal concern leading to the recommendation favoring appellate review of sentences was the perception that sentences were not evenly imposed across the state. Rather than adopt a mechanical approach along the lines of the Federal Sentencing Guidelines, it was thought that appellate review could address the major inequities. The initial response of the Indiana Supreme Court was to adopt a rule that prescribed no procedures, but adopted a substantive standard of review that virtually precluded appellate revision. In 1972 the predecessor of Appellate Rule 7 was adopted calling for affirming a sentence unless it was “manifestly unreasonable,” thus requiring an appellate declaration that the trial court had lost its bearings altogether before the appellate court would act. As might be expected, few sentences were disturbed under this regime. But increased concern for disparity in sentencing led to the amendment of the rule in 2000 to provide for revision of a sentence that was “inappropriate in light of the nature of the
It would seem that the Constitution contemplates rules fleshing out the appellate review of sentences, but Indiana and most other jurisdictions have addressed the issue, if at all, in case law. I have no objection to proceeding by case law, but I do not join in the holding that appellate upward revision is dependent on the defendant‘s challenging his sentence. As we confirm today, the State can neither appeal nor cross-appeal a sentence. The majority would permit the State to argue for an increased sentence if the defendant challenges the sentence. I assume this means that no argument for an increased sentence is to be presented in the State‘s appellate briefing unless the defendant has sought to invoke the appellate court‘s review and revise power.
This scheme seems impractical to me. First, I assume the appellate court could exercise its review and revise power whether or not the State requested it. It would not take Louis Brandeis to figure out how to smuggle an argument for an increased sentence into a brief ostensibly addressing other issues. More importantly, even if the appellate court would not address the sentence unless one or more parties requests it, upward sentence revision would be at risk only if the defendant initiates the debate over the sentence. This puts the defendant‘s counsel in a very awkward position if upward revision by an appellate court is a realistic prospect. Often the sentence is the only viable issue in the appeal that
It seems highly unlikely that in practice Indiana‘s appellate courts will frequently exercise their power to increase a sentence. Although I agree we have had that power for thirty-six years, neither this Court nor the Court of Appeals has ever exercised it. We have tacitly, and without awareness of the British legacy Justice Dickson has outlined, followed our British cousins in foregoing upward revision of sentences. In my view we should forthrightly state that although we have that power, we have never exercised it and do not expect to exercise it in the future except in the most unusual case. This will leave defendants free to exercise their constitutional right to appeal without great concern for retribution, eliminate concern for ineffective assistance claims based on taking an appeal that backfired, and avoid the temptation for the State to disguise a sentencing argument in some other garb.
RUCKER, J., concurs in Part II.