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Monday, July 22, 2013

Ind. Courts - A Broader View of Recent Sentencing Revision Cases

Commentary by Stephen Creason, Chief Counsel of Appeals, Office of the Indiana Attorney General

Professor Joel Schumm’s July 3 Indiana Law Blog commentary, "Appellate Sentence Review in Indiana: Death by a Thousand Per Curiams?”, raised many thought-provoking and even controversial points about the status of appellate court review of criminal sentences that are worth some additional discussion. Sentencing revision isn’t an abstract matter of only marginal importance to the legal community or even the citizenry at large; it has substantial policy implications and potentially affects every criminal defendant and crime victim. Our Supreme Court has used this constitutionally-derived power to remove murderers from death row and cut child molesters' and abusersaggregate sentences by half or more. The Court of Appeals has used its authority in many other cases involving a wider-range of offenses. Criminal law practitioners frequently debate the wisdom of these decisions.

Obviously, defendants have keen interests in how long their sentences are, but their victims do also. The Attorney General’s Office and our colleagues in county prosecutors’ offices work with these victims daily, and the length of a defendant’s sentence is usually incredibly important to them. When a sentence reduction is ordered, victims are frequently afraid of the unintended consequences. Trial judges often express to me their own concern about the effects of appellate revision. While this power has some marginal impact on our prison population (and therefore state and local budgets), it more profoundly affects the continual, important debate over sentencing policy in a just society.

At some point, how our courts apply Appellate Rule 7(B) in the real world has consequences for everyone. Therefore, Prof. Schumm’s piece is an important contribution to the conversation about criminal sentencing. In this article, however, I offer more complete data on the last 18 months of sentencing revision decisions, and explain why it paints a picture quite different from my colleague’s view.

Professor Schumm made three points worth reconsideration:

  1. The retirement of Judge Shepard from the Supreme Court prompted the State to “routinely” file petitions to transfer in cases where the Court of Appeals revised a criminal sentence downward;
  2. The State has sought transfer in every such case that followed the Court of Appeals’ opinion in Hough v. State, decided on July 17, 2012; and
  3. In apparent response, only once in 2013 has the Court of Appeals used Appellate Rule 7(B) to reduce a sentence on appeal.
Some of the data that were cited to support these claims are incorrect and other data are too sparse. This can lead to inaccurate analysis of the trends in sentencing review under Rule 7(B). From more complete data emerges a different picture than the one drawn in that commentary.

The Actual Data

The Court of Appeals has revised fifteen sentences under Rule 7(B) in 2012 and 2013:

1. Tharp, decided January 19, 2012, transfer not sought;

2. Curry, decided January 25, 2012, State did not seek transfer but Curry’s petition was denied on June 4, 2012;

3. Punturi, decided February 1, 2012, transfer not sought;

4. Bushhorn, decided February 16, 2012, transfer granted June 4, 2012, decided on transfer July 26, 2012;

5. Certain, decided February 29, 2012, transfer not sought;

6. Griffin, decided March 21, 2012, transfer not sought;

7. Kimbrough, decided March 21, 2012, transfer granted and decided December 19, 2012;

8. Gleason, decided March 29, 2012, transfer not sought;

9. Kucholick, decided June 8, 2012, transfer granted and decided on November 7, 2012;

10. Inabnitt, decided on June 20, 2012, transfer not sought.

11. Hough, decided on July 17, 2012, transfer not sought;

12. Merida, decided October 23, 2012, transfer granted January 11, 2013, and decided on transfer May 17, 2013;

13. Lynch, decided November 2, 2012, transfer granted January 11, 2013, and decided on May 17, 2013

14. Kovats, decided February 7, 2013, transfer not sought; and

15. Chambers, decided February 27, 2013, transfer granted and decided July 2, 2013.

This list includes several cases overlooked in the prior commentary. Most notable is the Kovats case, the first of two sentence revisions made by the Court of Appeals thus far in 2013, and also a case in which the State did not seek transfer.

What Does it Mean?

It’s a mistake to look at this list and conclude that Judge Shepard’s retirement (or the service of any justice) has caused the State to “routinely” seek transfer. First, in January and February 2012, the Court of Appeals revised five sentences (Tharp, Certain, Curry, Punturi, and Bushhorn), and yet the State only chose to seek transfer in a single one: Bushhorn. One would presume that had the Chief’s retirement precipitated a major change in the State’s transfer practice, the Attorney General’s Office would have done so immediately in the wake of a very high period of revisions by the Court of Appeals.* It did not.

During all of 2012, the Court of Appeals revised thirteen sentences, and the State petitioned the Supreme Court for transfer in five—just thirty-eight percent of the relevant cases. From March 2012 to the present,** the Court of Appeals has revised ten sentences, but the State sought transfer in just half of those cases. So given just the raw data, it is a tenuous at best to suggest that Judge Shepard’s retirement is the decisive proximate cause for the State to seek transfer in sentence revision cases. Regardless, the State does not seek transfer “routinely.”

Instead, this data suggests what actually happens: the Attorney General’s Office carefully considers each adverse Court of Appeals opinion before deciding whether the State should seek transfer, and the Supreme Court considers for itself whether the case should be transferred and decided differently. Only if the case satisfies one or more of the Court’s criteria for granting transfer (see Appellate Rule 57(H)), and it is an appropriate vehicle to present the State’s concern to the Court, is it likely that the State will file a petition. The best illustrations of this are the six cases in which the State petitioned from over the past year and a half: each case presented a different concern and an opportunity to provide further guidance on different aspects of the proper application of the rule. Nine other cases didn’t meet those criteria.

Of course the views of the members of the Supreme Court help inform that calculation—what lawyer would casually and intentionally choose to work a disadvantage for her client by presenting a losing case to an unreceptive panel? That the current Court appears likely to view these issues similarly to the State and the sentencing trial judge doesn’t trump—or even drive—the State’s larger considerations.

What about the Court of Appeals’ trend?

None of this discussion answers the more interesting observation about the trend that the Court of Appeals has revised sentences less frequently than in the past few years. Frankly, this data doesn’t give us a reliable basis to speculate as to why this has occurred. It doesn’t seem to be related to the Supreme Court’s decisions, at least not initially. The trend had started by April 2012, well before the Supreme Court decided Bushhorn on July 26:

April 2012: zero revisions
May 2012: zero revisions
June 2012: two revisions (Kucholick, Inabnitt)
July 2012: one revision (Hough)
The next two Supreme Court decisions, Kucholick and Kimbrough, weren’t decided until November and December. Yet the trend of fewer revisions continued throughout the rest of the year:
August 2012: zero revisions
September 2012: zero revisions
October 2012: one revision (Merida)
November 2012: one revision (Lynch)
December 2012: zero revisions
January 2013: zero revisions
February 2013: two revisions (Kovats and Chambers).
March-June 2013: zero revisions
The data set is too small and the period of time too short to reliably identify any reason for why the Court of Appeals made fewer revisions over the past year than in the prior year. These cases are judged individually and based upon the particular facts and circumstances present. Sentencing is inherently subjective, as is the appellate review of those sentences. Analysis of these data doesn’t account for any of these variables, and the data is so thin that no conclusion can be statistically reliable.

I disagree with Prof. Schumm’s conclusion that this apparent trend must be simply because “the Court of Appeals appears to have noticed the trend” of the Supreme Court reviewing its sentence revisions. As the last portion of Prof. Schumm’s piece hints at without actually recognizing, it is simply more complicated than that. Until someone can read the collective mind of the Court of Appeals, we can’t account for what has precipitated this development. As lawyers practicing before these courts, we would be wise to avoid assuming any singular motivation or drawing broad conclusions from limited data. And while a discussion of trends within Indiana’s appellate courts is healthy, context is important, so I appreciate the opportunity to give a fuller picture of this issue in this valuable forum.
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* It is highly unlikely that any of these cases could have been fully briefed (typically about a 60-day process if a brief in response is filed) and conferenced by the Supreme Court before Judge Shepard’s retirement on March 23, 2013. Case in point is Bushhorn, which was decided by the Court of Appeals on February 16, transmitted to the Court on April 27, and transferred on June 4.

** Any petition to transfer in cases during this period would have been filed after Judge Shepard’s retirement.

Posted by Marcia Oddi on July 22, 2013 10:54 AM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Courts | Schumm - Commentary