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Tuesday, March 25, 2014

Ind. Courts - Sentence Reductions in Indiana: Now An Annual Event?

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

Each year as part of the criminal law survey article I write for the Indiana Law Review, I include some statistics on sentence reductions by the Indiana Court of Appeals under Appellate Rule 7(B). Notice the dramatic reduction over the past three years:

Year 7(B) Claim Raised Reduced by COA Transfer to SC Net Reductions
10/1/10- 9/30/11 391 26 0 26 (6.6 %)
10/1/11- 9/30/12 337 16 3 13 (3.9%)
10/1/12- 9/30/13 302 4 3 1 (0.3%)
As explained in these July 3 and July 22 posts last summer, the revision of sentences is the areas of law in which the Indiana Supreme Court’s jurisprudence has changed most significantly since the 2012 retirements of Chief Justice Shepard and Justice Sullivan. Before the retirement of Chief Justice Shepard, the State would rarely seek transfer from a reduction; it has done so (successfully) in nearly every case since his retirement. More notable, though, is the dramatic reduction of sentence revisions by the Court of Appeals, from nearly 7% three years ago to about one case per year in the past year. Moreover, it’s not as though these cases are dividing panels at the Court of Appeals. Of the nearly 300 opinions in which the defendant’s 7(B) claim was rejected, only four included a dissenting opinion, each of which was written by Judge Riley. Finally, although less stark, appellate counsel for defendants are not oblivious to the shift and are increasingly less likely to raise 7(B) claims.

Wednesday’s opinion in Corbally v. State appears to be the first sentence reduction by the Court of Appeals in more than a year. The last two reductions were in February of 2013. Transfer was quickly granted and the original sentence reinstated in Chamber v. State. In Kovats v. State, however, the State did not seek transfer form an opinion that includes a few pages of thoughtful reasoning to support its modest reduction of a 20-year sentence to 15 years.

Corbally similarly includes pages of thoughtful analysis in a fairly modest reduction (from 270 years to 165 years), including the following:

In researching reported cases decided since adoption of the “inappropriate” standard for reviewing sentences, we have found that the longest affirmed sentence imposed for a single episode of sexual violence against one victim was 151 years, in Johnson v. State, 837 N.E.2d 209, 213-14 (Ind. Ct. App. 2005), trans. denied. In that case, the defendant and two cohorts carjacked a woman’s vehicle, unsuccessfully attempted to force her to withdraw money from an ATM, drove her to a garage, then forced her to perform numerous sexual acts while the defendant was armed with a gun. The defendant had an extensive criminal history, including three felony convictions, consisting primarily of drug offenses. The sentences in other reported cases involving a single episode of sexual violence have generally ranged in the ninety to 150-year range. See Akard v. State, 937 N.E.2d 811, 814 (Ind. 2010) (affirming 94-year sentence and reversing this court’s sua sponte increase of sentence to 118 years for two counts of Class A felony rape, one count of Class B felony rape, two counts of Class A felony criminal deviate conduct, one count of Class B felony criminal deviate conduct, two counts of Class B felony confinement, and two counts of Class C felony battery, where defendant without criminal history abducted homeless woman who appeared childlike and acted out child bondage rape fantasies upon her for several hours); Alvies v. State, 905 N.E.2d 57, 64-65 (Ind. Ct. App. 2009) (affirming 110-year sentence for murder, Class A felony rape, Class B felony criminal confinement, Class B felony burglary, and Class D felony auto theft, where defendant without criminal history abducted victim from her home and, with cohorts, raped victim and then shot and killed her); Rose v. State, 810 N.E.2d 361, 368-39 (affirming 135-year sentence following guilty plea to Class A felony burglary, Class B felony confinement, two counts of Class A felony criminal deviate conduct, and three counts of Class B felony robbery, where defendant and cohort broke into house, performed various sexual acts on two victims, one of whom was pregnant and went into premature labor, and victims were robbed; defendant was sixteen and had several delinquency adjudications).; cf. Horton v. State, 949 N.E.2d 346, 349 (Ind. 2011) (revising 324-year sentence for six counts of Class A felony child molesting and three counts of Class C felony child molesting to 110 years, where defendant had no adult criminal history but he had daily for six months violently molested seven-year-old girl, causing damage to her bowels and giving her herpes).
I would be surprised if the State seeks, or the Court grants, transfer in Corbally. The opinion easily satisfies the State’s requirement of a “compelling analysis” mentioned during an Indiana Supreme Court oral argument last year. As explained in the July 3 post, the Court of Appeals’ opinion in Merida, which did not survive transfer, cited a couple of cases for the legal standard and marshaled the relevant facts but did not apply any Supreme Court child molesting sentence reduction precedent. Corbally does much better on this score.

Finally, as a practical matter, there is not much difference between the 270 years imposed by the trial court and the revised sentence of 165 years. Even if Mr. Corbally maintains good behavior in prison and does only 50% of his sentence, each is a life sentence. The effect of the Court of Appeals’ opinion is to move his release date from April 27, 2146, to approximately November 27, 2093.

Posted by Marcia Oddi on March 25, 2014 10:20 AM
Posted to Indiana Courts | Schumm - Commentary