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Monday, July 22, 2013

Ind. Courts - Professor Schumm: Additional thoughts on sentence revisions

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

I appreciate Mr. Creason’s thoughtful post and hope the discussion about appellate sentence revision continues and broadens. In that spirit, I have a few additional thoughts.

First, my search for recent Court of Appeals’ sentence revisions failed to include Kovats v. State, a February opinion in which the Court revised a twenty year sentence to fifteen, and the State did not seek transfer. Beyond that case, however, our data are essentially the same, although he begins counting cases earlier, including cases before Chief Justice Shepard’s retirement in late March of last year.

Although more data would always be nice, I stand by the earlier suggestion that sentence review has changed dramatically in both the Indiana Supreme Court and Court of Appeals over the past year. First, the Court of Appeals reduced sentences under Rule 7(B) in 26 cases (10/1/10 - 9/30/11) and 16 cases (10/1/11 - 9/30/12) in recent years but has reduced sentences in just 4 in the year that will end in a little over two months (10/1/12 - 9/30/13).

After no grants of transfer filed by the State in 7(B) claims for decades, the Court granted six petitions filed by the State (100%) between June 4, 2012, and July 2, 2013. There is no reason to be defensive about this success rate. The focus of my post was on the practices of the Court, which necessarily depends on cases in which parties seek transfer. My post did not fault the State for seeking transfer or suggest each petition was not supported by Rule 57(H) grounds for transfer but rather noted the significant change in Supreme Court opinions.

Each grant of transfer and opinion is significant, and several assume even greater significance. Chief Justice Dickson mentioned during the Lynch oral argument (beginning at the 21:25 mark) the “small 'p' political interaction in terms of how we judges persuade each other and reach a decision”, continuing:

You’re speaking of the Court of Appeals as if it is a known, fixed quantity, but in fact it was through some considerable act of leadership on the part of this Court that the Court of Appeals years ago was encouraged to start doing sentence revision at all, even though the appellate rule was on the books and the constitutional provision was on the books. But this Court had to, through its decisions granting transfer, granting sentence review, basically send a signal to the Court of Appeals: be more proactive in this area. And they’ve responded. And now we get a case and the question is, are they too proactive, it is time now to calm them down and say, down boy, down boy; don’t get carried away with this.
Moving Forward

I hope this important discussion continues and broadens beyond statistics or apparent trends. Mr. Creason’s post mentions that each petition to transfer filed by the State “presented a different concern and an opportunity to provide further guidance on different aspects of the proper application of the rule.” Unfortunately, the Court has not seized the opportunity to provide specific guidance on each of these different aspects in every opinion. It is true that Kimbrough explained that an appellate court cannot reduce a sentence under 7(B) when a different type of sentencing challenge is raised on appeal, but other recent 7(B) opinions have not provided the sort of detail and guidance typically found in cases in which the Supreme Court grants transfer. Although the other short per curiam opinions resolved the cases, they do not offer crucial guidance to lower courts and lawyers trying to sort through when sentences are or are not inappropriate.

Posted by Marcia Oddi on July 22, 2013 12:11 PM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Courts | Schumm - Commentary