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Wednesday, March 31, 2010
Ind. Decisions - "Appeal backfires on convicted rapist"
The Court of Appeals decision yesterday in Jeffrey E. Akard v. State of Indiana is the talk of the defense bar, according to this excellent story today by Sophia Voravang of the Lafayette Journal Courier (see ILB summary here):
A former Purdue University student already sentenced to 93 years in prison for brutally raping a homeless woman deserves a tougher penalty for his "unspeakable violent acts," the Indiana Court of Appeals has ruled.The 2009 Supreme Court decision referenced is McCullough v. State. See the Feb. 10, 2009 ILB summary of McCullough here - and be sure to note the last portion of the entry.Jeffrey A. Akard, 35, of Peru, Ind., was found guilty in January 2009 of 10 felonies related to the Sept. 9, 2006, assault. He appealed the convictions and subsequent sentence by Tippecanoe Superior Court 2 Judge Thomas Busch.
Among the issues raised by Akard was whether the 93-year sentence was appropriate -- asking that it instead be reduced to 40 years.
The Indiana Court of Appeals disagreed. In an unprecedented and unanimous decision issued Tuesday, the panel of three judges ruled that Akard's sentence be increased to 118 years because of the crimes' heinous nature.
"It's my understanding that it's the first time ever in the state of Indiana where a defendant's sentence was revised upward," said Tippecanoe County Deputy Prosecutor Laura Zeman, who handled Akard's case.
"This is extremely significant."
The ruling could ultimately effect how defense attorneys file appeals, according to Joel Schumm, a clinical professor of law at Indiana University School of Law -- Indianapolis. * * *
Tuesday's 17-page appellate court ruling references a 2009 opinion by Indiana Supreme Court Justice Theodore Boehm in which Boehm wrote that the state's higher courts have authority to revise a sentence upward.
But "we have never exercised it and do not expect to exercise it in the future except in the most unusual case."
The appellate court determined that Akard's was one of those cases.
"The violence and sinister mentality associated with an individual raping an adult is serious and disturbing," appellate Judge Mark L. Bailey wrote. "However, when these acts are premeditated, motivated and purposely carried out to satisfy an even more diabolical interest, the rape of an adult is indescribably more heinous.
"Based on Akard's character and the nature of the offenses, we conclude that this is a most unusual case that warrants the extreme rarity of this court invoking its authority to revise a sentence upward."
According to Schumm, the IU professor, the appellate court can only revise a sentence upward if a defendant challenges his or her sentence on appeal -- which is often.
"It will be interesting to see what defense lawyers do, as far as challenging sentences," he said. "Most people think of an appeal as a decrease in a sentence."
A spokeswoman for the Indiana Court of Appeals could not confirm whether the decision was unprecedented.
But Schumm said many in the legal field took note of Justice Boehm's 2009 opinion.
"Everyone had been waiting to see what would happen," he said. "Everyone has been talking this case (Akard's) today."
Posted by Marcia Oddi on March 31, 2010 08:11 AM
Posted to Ind. App.Ct. Decisions