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Criminal: Defendant Who Challenged Sentence Will Spend More Time In Jail
Posted in Litigation

On February 10, in McCullough v. State, the Indiana Supreme Court ruled that a defendant who asks an appellate court to use its constitutional authority to “review and revise” his sentence opens the door for the State to argue the sentence should be higher. 

Today, the Indiana Court of Appeals demonstrated that a defendant also risks an increased sentence if he appeals it on statutory grounds.  In Young v. State, the defendant pleaded guilty to Operating a Motor Vehicle While Intoxicated, as a Class D felony, and was adjudicated a Habitual Substance Offender.  The trial court sentenced Young to three years, with 855 days suspended, for the Class D felony conviction, and suspended to probation all five years of a sentence for being a habitual substance offender.  Young appealed, presenting only a single issue:  whether the trial court erred when imposing as a condition of probation that Young would be prohibited from driving.

The Court of Appeals not only affirmed the suspension of driving privileges as a condition of prohibition, it sua sponte held that Young’s sentence was illegal and that his executed jail time should be increased.  The court first explained that, under Indiana Code section 35-50-2-10(f), “the trial court ‘shall’ sentence a person found to be an habitual substance offender to an additional fixed term of at least three years but not more than eight years imprisonment.”  And, the court continued, under Indiana Code section 35-50-2-2(b), “a trial court may suspend only that part of a sentence that is in excess of the minimum sentence, where the felony committed was an offense under Indiana Code Section 9-30-5 (OWI) and the person who committed the offense has accumulated at least two prior unrelated convictions under Indiana Code 9-30-5.”

Applying these principles to Young’s sentence, the Court of Appeals held, “the trial court [could] only suspend that portion of the sentence in excess of three and a half years.”  Thus, “[b]ecause the trial court ordered that all but 240 days of Young’s sentence would be suspended, that sentence is illegal.”  End result:  Young’s challenge to a condition of his probation (whether he could drive) increased his stay in prison from 240 days to three and a half years.



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