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Indiana Supreme Court: State May Challenge Illegal Sentence For First Time On Appeal
Posted in Litigation

On Tuesday, the Indiana Supreme Court resolved a conflict in the Indiana Court of Appeals by holding that “the State may challenge the legality of a criminal sentence by appeal without first filing a motion to correct erroneous sentence,” and that the sentencing challenge may be made for the first time in the State’s response brief on appeal.

In Hardley v. State, the defendant on appeal presented claims of insufficient evidence and double jeopardy.  In response, the State contended that the trial court had erroneously imposed concurrent sentences in contravention of statute – an argument the State had not made to the trial court at the time of sentencing or within thirty days of final judgment. 

The Indiana Court of Appeals addressed the State’s issue, asserting “fundamental error” and finding that it could not “ignore an illegal sentence, even if the State did fail to properly preserve the issue.”  Hardley v. State, 893 N.E.2d 1140, 1145 (Ind. Ct. App. 2008).  This holding conflicted with a different panel’s ruling in Hoggatt v. State, 805 N.E.2d 1281 (Ind. Ct. App. 2004), which held that the State could raise such an issue only by a direct appeal.

The Indiana Supreme Court, in a 3-2 opinion by Justice Dickson, held that the State may raise the issue of an illegal sentence for the first time on appeal – though not under the doctrine of fundamental error, which “by its nature . . . exists to protect the fair trial rights of the defendant, not the State.”  Instead, the Court concluded that the State’s ability to challenge an illegal sentence for the first time on appeal was akin to a statutory motion to correct an erroneous sentence – for which there is no time limit – and that the State may do so “when the issue is a pure question of law and does not require resort to evidence outside the appellate record.”

Justice Boehm dissented, joined by Justice Rucker, stating that he would require the State to first raise the issue of an illegal sentence in the trial court.



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