Monday, September 13, 2010
Ind. Decisions - Briefing documents in Akard v. State now available
Earlier today the ILB noted that the Supreme Court had granted transfer in Akard v. State.
Here are links to the:
- 12-page petition to transfer
- 17-page amicus brief of the Public Defender Council
- 9-page reply brief of the Attorney General
Here is the Summary of Argument from the PDC brief:
This Court held last March in McCullough v. State 900 N.E.2d 745 (Ind. 2009), that appellate courts have the power to revise sentences upward on appeal, and this is the first case in which the power was exercised. Transfer is appropriate because the Court of Appeals' opinion raises significant and troubling questions about how that power may be exercised in future cases. Ind. Appellate Rule 57(H)(4) & (6).Don't miss the Table on pp. 8-9 of the PDC brief, detailing, in 7 cases: Case and Charge; Reduction %; and Reasons Cited.
Although the prosecutor requested a sentence of ninety-three years, the Court of Appeals ordered the sentence increased to 118 years by reciting no legal principle or policy but simply the graphic nature of the facts. This case puts both defense lawyers and trial judges in an untenable, if not impossible, position . In any case with graphic facts, the trial court cannot rely on prosecutor's request for a ninety-three year sentence -- a life sentence when the defendant is facing consecutive federal time for another offense -- but must impose something beyond that to avoid the prospect of second-guessing by the Court of Appeals. Appellate counsel, especially when confronted with a very lengthy sentence requested by the prosecutor, cannot competently advise a client about whether to appeal the sentence because the Court of Appeals seems free to increase a sentence for any reason and with no explanation grounded in principle and precedent.
Transfer is appropriate to reverse the Court of Appeals' sua sponte increase in this case and clarify the standards for increasing a sentence on appeal. Specifically, a sentence requested by the prosecutor should never be found too lenient on appeal. Moreover, an increase should only occur in " the most unusual case," which should be limited to sentences where the trial court has significantly disregarded a sentencing principle in a manner that results in a sentence so low that it shocks the conscience of the reviewing court.