Main Menu
Criminal: Defendants, Be Careful What You Ask For
Posted in Litigation

Today, the Indiana Supreme Court held that defendants who ask an appellate court to “review and revise” their sentences - pursuant to the court’s state constitutional authority to do so - open themselves up to the possibility that their sentence might be revised upward.

In McCullough v. State, all five Justices agreed that the judiciary’s power to “revise” criminal sentences – a power granted by Article 4 of the Indiana Constitution – was not limited to only decreasing those sentences. 

“The word ‘revise’ is not synonymous with ‘decrease,’ but rather refers to any change or alteration,” Justice Dickson wrote for the Court.  “[W]e hold that the appellate review and revise authority derived from Article 4 of the Indiana Constitution likewise includes the power to either reduce or increase a criminal sentence on appeal.”

All five Justices also agreed that “the State may not, by appeal or cross-appeal, (a) initiate a challenge to a trial court’s criminal sentence that is within the court’s sentencing authority or (b) seek appellate review and revision of such sentence.”

However, the Justices split, 3-2, on what triggers the appellate court’s authority to revise sentences (presumably upward or downward).  Justice Dickson (writing for himself, Chief Justice Shepard, and Justice Sullivan) concluded that the power is triggered when “a defendant requests appellate review and revision of a criminal sentence pursuant to authority derived from Article 7, Sections 4 or 6 of the Indiana Constitution.”  At that point, the majority concluded, the State was free to argue – and the court free to conclude – that the sentence should be revised upward.

Justice Boehm (writing for himself and Justice Rucker) believed that system would put defendants’ counsel “in a very awkward position if upward revision by an appellate court is a realistic prospect. . . . We should not force counsel to choose among raising the issue and obtaining an increased sentence, or foregoing the issue and either waiving appeal or raising frivolous issues.”  The more practical approach, Justice Boehm suggested, would be to “forthrightly state that although we have the power [to revise upward], we have never exercised it and do not expect to exercise it in the future except in the most unusual case.”



Recent Posts




Back to Page