McCullough v. State
| Citation | 900 N.E.2d 745 |
| Decision Date | 10 February 2009 |
| Docket Number | No. 49S02-0809-CR-508.,49S02-0809-CR-508. |
| Parties | Steven McCULLOUGH, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Supreme Court of Indiana |
Steven J. Halbert, Carmel, IN, Ann Marie Sutton, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
On Transfer from the Indiana Court of Appeals, No. 49A02-0711-CR-931.
We grant transfer and hold (1) in the exercise of the appellate authority to review and revise criminal sentences, a court may decrease or increase the sentence; (2) the State may not by appeal or cross-appeal initiate a challenge to a sentence imposed by a trial court; and (3) if a defendant seeks appellate review and revision of a sentence, the State may respond and urge the imposition of a greater sentence without the necessity of proceeding by cross-appeal.
The defendant, Stephen McCullough, was convicted of class C felony Criminal Confinement, class D felony Criminal Confinement, and class A misdemeanor Battery, and was found to be a habitual offender. The trial court had ordered a two-year sentence for each of the two confinement convictions and one year for the battery conviction, all to be served concurrently, plus a four-year habitual offender enhancement, for a total sentence of six years, two of which would be served in the Department of Correction and four years in a community correction facility. In this direct appeal, he raises claims of insufficient evidence and double jeopardy but does not seek appellate review of his sentence. The State has cross-appealed, asserting that the trial court abused its discretion in balancing the aggravating and mitigating factors and that the sentence imposed for the class C felony and habitual offender counts were inappropriately lenient in light of the nature of the offense and the character of the offender. The Court of Appeals held that (1) the convictions were supported by sufficient evidence; (2) the class D felony confinement conviction must be vacated on double jeopardy grounds; (3) the Indiana Constitution's provision authorizing appellate courts to review and revise criminal sentences specifically contemplates that an appellate court could impose a more severe sentence; and (4) the State may not by cross-appeal challenge a defendant's sentence for abuse of discretion or inappropriateness unless the defendant appeals his sentence. McCullough v. State, 888 N.E.2d 1272, 1276-81 (Ind.Ct.App.2008). While vacating the conviction and concurrent sentence for class D felony confinement, the Court of Appeals affirmed the trial court's resulting enhanced sentence as to the other counts. Id. at 1282. We granted transfer to address whether an appellate court may increase a sentence and whether the State may by cross-appeal initiate a challenge to the trial court's sentence. As to the issues of evidence sufficiency and double jeopardy, we summarily affirm the decision of the Court of Appeals. Ind.App. R. 58(A)(2).
We first consider whether an appellate court, in reviewing and revising a criminal sentence pursuant to authority derived from Article 7, Section 4 of the Indiana Constitution, may impose a more severe sentence than was ordered by the trial court. Section 4 provides in pertinent part: "The Supreme Court shall have, in all appeals of criminal cases, the power ... to review and revise the sentence imposed." In addition to Section 4, Article 7 also includes Section 6, which authorizes the Court of Appeals to "exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules which shall, however, provide ... to the extent provided by rule, review and revision of sentences for defendants in all criminal cases." The review and revise authority for the Supreme Court and the Court of Appeals was implemented by the adoption of Indiana Appellate Rule 7(B). See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.2007).
When it is necessary to interpret our state constitution, we look to "the language of the text in the context of the history surrounding its drafting and ratification, the purpose and structure of our constitution, and case law interpreting the specific provisions." State v. Monfort, 723 N.E.2d 407, 409 (Ind.2000) (internal quotation marks omitted); see also Alpha Psi Chapter v. Auditor of Monroe County, 849 N.E.2d 1131, 1135 (Ind.2006); State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.2002); Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998).
The text of Section 4 provides no explicit direction as to whether the power to revise a sentence authorizes sentence increases as well as reductions. We thus look to the intent of its framers and the history surrounding its drafting and adoption. Section 4 was part of a constitutional amendment that was ratified by the voters in 1970, to become effective in 1972, as part of the rewritten judicial article, Article 7. The new judicial article, including the appellate review and revise authority, resulted from the efforts of the Judicial Study Commission, created by the Indiana General Assembly to study the needs of the state for revision of the judicial system, to continuously survey and study the judicial system's operation, and to submit suggestions or recommendations for changes to the judicial system. Act of March 3, 1965, Ch. 47, 1965 Ind. Acts 77. The Commission's work on the revised Article began in 1965 and culminated with its 1966 proposal of the new judicial article.
At the December 9, 1965, first meeting of the Judicial Study Commission, a three-member committee, consisting of C. Ben Dutton, chairman, Representative Robert V. Bridwell and William M. Evans, was assembled to recommend changes to the existing judicial article. Minutes from the Organization Meeting of the Judicial Study Commission, at 4 (Dec. 9, 1965).1 By April 27, 1966, the Commission had adopted a formal resolution "that the committee heretofore appointed to draft an amendment of the judicial article in the Indiana Constitution is requested to draft a general judicial article embracing the full scope of the judiciary instead of specific changes in separate amendments." Minutes from a Meeting of the Judicial Study Commission, at 2 (Apr. 27, 1966).
The Commission's minutes and reports reveal little as to the Commission's intent regarding the precise nature and operation of the review and revise power, but these sources provide persuasive evidence that the Commission's inclusion of the review and revise authority derived from the 1962 American Bar Association ("ABA") Model Judicial Article. At an early meeting of the Judicial Study Commission, Dutton recommended, with regard to the judicial article, that the work should "[s]tart with the model article." Minutes from a Meeting of the Indiana Judicial Study Commission, at 2 (May 17, 1966).
In the Commission's proposed revision of Article 7, the operative text of both Sections 4 and 6 include language that substantially corresponds to the ABA model article. Both the proposed Section 4 and Section 2, Paragraph 2(B) of the ABA model article grant appellate power "to review and revise the sentence imposed." See Text of the ABA Model State Judicial Article, reprinted in 47 J. Am. Judicature Soc'y 6, 9 (June 1963). And the Commission's proposed Section 6 substantially mirrors Section 3 of the ABA version. Both provisions would authorize the Court of Appeals to "exercise appellate jurisdiction under such terms and conditions as the Supreme Court shall specify by rules" that include the authority to review and revise sentences in criminal cases. Compare id. with 1966 JUDICIAL STUDY COMM'N REP. 141. Of particular significance is the fact that the Indiana Judicial Study Commission's commentary to its proposed Section 4 is identical in language to comments published by the ABA in 1962 in support of its model provision. The ABA explained: "The proposal that the appellate power in criminal cases include the power to review sentences is based on the efficacious use to which that power has been put by the Court of Criminal Appeals in England." Text of the ABA Article, supra, at 9. This ABA language was utilized in its entirety by the Commission in its report, and it represents the only commentary the Commission employed to support the grant of review-and-revise power. See 1968 JUDICIAL STUDY COMM'N BIENNIAL REP. 10.
As of the time the ABA approved and issued its Model Judicial Article, the British statute establishing the Court of Criminal Appeal provided:
On appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.2
Criminal Appeal Act, 1907, 7 Edw. 7, c. 23, § 4(3) (emphasis added).3
In 1967, the Indiana General Assembly began the constitutional amendment process, passing House Joint Resolution 6.4 As to appellate review and revise authority, the legislature precisely followed the recommendation of the Judicial Study Commission. Compare Act of March 6, 1967, ch. 375, 1967 Ind. Acts 1360-61 with 1966 JUDICIAL STUDY COMM'N REP. 5-6. In its 1968 Biennial Report, continuing the process of constitutional amendment, the Judicial Study Commission again suggested the same language in regard to review and revise in both the proposed amendment and its commentary. 1967-1968 JUDICIAL STUDY COMM'N BIENNIAL REP. 9-10. In 1969, the Indiana General Assembly passed House Joint Resolution 12, employing identical language as to granting appellate review and revise authority. Act of March 10,...
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