RECENT DEVELOPMENTS IN INDIANA CRIMINAL LAW
AND PROCEDURE

JOEL M. SCHUMM*

Indiana’s appellate courts confronted a variety of significant issues during the
survey period October 1, 2016, to September 30, 2017. Justice Rucker’s nearly
two decades of service on the Indiana Supreme Court concluded in May, and
Justice Goff took the bench in July.1 With that appointment, the court has been
transformed from the five justices who served together from 1999-2010 (Shepard,
Dickson, Sullivan, Boehm, and Rucker), to five justices with an average of less
than four years of experience (Rush, David, Massa, Slaughter, and Goff).2 As
explored below, the new court has increasingly used per curiam opinions and
otherwise generally resolved cases on narrow grounds. 

This Article focuses on opinions from the Indiana Supreme Court and many
of the significant opinions from the Indiana Court of Appeals, on a wide range of
issues that affect cases from their beginning to end. 

I. SPEEDY TRIAL

Hoskins v. State3 provides several useful reminders of the State’s duty to
bring a criminal defendant to trial within the time periods of Criminal Rule 4.
Although the clock does not run during periods of delay caused by the defendant,
the court found the State to blame for most of the delays in reversing convictions
for marijuana offenses against two defendants.4 

First, the court of appeals reiterated that the clock starts running when
charges are filed (or upon arrest, if that occurs later)—and not the date the
defendant retains counsel.5 The court distinguished cases where the defendant had
taken actions that caused a delay, observing in this case, the defendant had not
changed counsel, waited “an unreasonable amount of time to retain counsel, or
in any way delay[ed] the setting of the trial with respect to retention of counsel.”6

Moreover, the court of appeals refused to charge the defendant with the delay
caused by the State’s request for a continuance after the defendant requested the
return of three cell phones seized during his arrest.7 Because the phones had been
in the State’s possession for eight months before the defendant requested their
return, the court characterized the “extraordinarily belated search” a “strategic”

* Clinical Professor of Law, Indiana University Robert H. McKinney School of Law. B.A.,

1992, Ohio Wesleyan University. M.A., 1994, University of Cincinnati. J.D., 1998, Indiana

University School of Law—Indianapolis.

1. Supreme Court Justices, https://mycourts.in.gov/JR/Default.aspx [perma.cc/9ZSU-L28C]

(last visited Mar. 28, 2018).

2. Id.

3. 83 N.E.3d 124 (Ind. Ct. App. 2017).

4. Id. at 127-30.

5. Id. at 127.

6. Id.

7. Id. at 128-29.

http://doi.org/10.18060/4806.1211



1016 INDIANA LAW REVIEW [Vol. 51:1015

decision for which the State was responsible.8 Similarly, the court held the State
responsible for the delay caused in the other defendant’s case by the State waiting
“until the last minute to listen to jail calls” that led it to seek search warrants for
the phones because it would be “unfair” to charge the defendant with the delay
resulting “from the way in which the State conducted its case.”9 

II. CORPUS DELICTI

Corpus delicti, a fancy word most lawyers may remember hearing in law
school, seldom plays a leading role in appellate decisions. This year provides a
not-easily-forgotten exception in a bestiality case. In Shinnock v. State,10 the
Indiana Supreme Court began by citing decades-old authority to provide an
explanation of general principles of the doctrine: 

a person may not be convicted of a crime based solely on a nonjudicial
confession of guilt. Rather, independent proof of the corpus delicti is
required before the defendant may be convicted upon a nonjudicial
confession. Proof of the corpus delicti means “proof that the specific
crime charged has actually been committed by someone.” Thus,
admission of a confession requires some independent evidence of
commission of the crime charged. The independent evidence need not
prove that a crime was committed beyond a reasonable doubt, but merely
provide an inference that the crime charged was committed. This
inference may be created by circumstantial evidence.11

As the court explained in Shinnock, “[t]he corpus delicti evidence required
to have a confession admitted is not the same as the corpus delicti evidence
required to sustain a conviction.”12 The court of appeals had held “the State was
required to prove penetration of the dog’s sex organ by a male sex organ before
it could admit Shinnock’s statement” at trial.13 The Indiana Supreme Court
disagreed, detailing the independent circumstantial evidence that provided an
inference that the defendant had committed bestiality, which made the confession
admissible.14  The State was not required to prove all the elements of the offense
before introducing the confession.15 

8. Id. at 128. 

9. Id. at 130. 

10. 76 N.E.3d 841 (Ind. 2017).

11. Id. at 843 (internal citations omitted). 

12. Id. at 844.

13. Id. at 842. 

14. Specifically, the dog-victim was not at the door to greet her owner “when he arrived

home like she usually did. Instead, she was found trapped in Shinnock's bedroom with him. He was

in his underwear and had an erection. The floor was covered in dog feces, which was unusual.

When [the owner] opened the door to Shinnock’s room, [the dog] ran to hide under the couch.” Id.

at 844.

15. Id.



2018] CRIMINAL LAW 1017

III. PROCEDURAL RIGHTS: SELF-REPRESENTATION, PLEA AGREEMENTS,
CLOSING ARGUMENTS

The appellate courts addressed important procedural rights of defendants
involving self-representation, guilty pleas, contempt, and closing arguments.

A. Failure to Warn Defendant of Dangers of Self-Representation

In Hart v. State,16 the court of appeals reiterated that defendants cannot
knowingly and intelligently waive their right to counsel without the trial court
advising them of “the dangers and disadvantages of self-representation.”17 There,
the defendant charged with invasion of privacy told the trial court he did not want
court-appointed counsel and failed to retain counsel for months before trial,
ultimately requesting a continuance one week before his scheduled trial.18 The
continuance was denied, and Hart represented himself at a three-day jury trial
during which “the trial court never questioned his lack of representation.”19 In a
footnote, the court reiterated that defendants may forfeit the right to counsel
through abusive or “extremely dilatory” conduct, which does not require an
advisement of the dangers and disadvantages of self-representation but did not
apply to Hart’s conduct.20 

B. Defendants Cannot Claim Innocence and Plead Guilty

Indiana courts have long required a defendant’s admission of guilt before a
trial court may accept a guilty plea. “[A] plea of guilty tendered by one who in
the same breath protests his innocence, or declares he actually does not know
whether or not he is guilty, is no plea at all. Certainly it is not a sufficient plea
upon which to base a judgment of conviction.”2 1 And, more recently, “a judge
may not accept a plea of guilty when the defendant both pleads guilty and
maintains his innocence at the same time. To accept such a plea constitutes
reversible error.”22 

The Indiana Supreme Court reaffirmed those principles in Ellis v. State,23 a
case where the defendant pleaded guilty to two counts of attempted murder and
two counts of attempted robbery.24 Although the State’s theory was that Ellis was
an accomplice and not a principal, he maintained his innocence at the plea
hearing, stating he “didn’t do nothing . . . didn’t cut nobody . . . did not rob

16. 79 N.E.3d 936 (Ind. Ct. App. 2017).

17. Id. at 941.

18. Id. at 938-39.

19. Id. at 939. 

20. Id. at 941 n.1. 

21. Harshman v. State, 115 N.E.2d 501, 502 (Ind. 1953).

22. Ross v. State, 456 N.E.2d 420, 423 (Ind. 1983).

23. 67 N.E.3d 643 (Ind. 2017).

24. Id. at 645.



1018 INDIANA LAW REVIEW [Vol. 51:1015

nobody.”25  He testified he tried to stop the attack by telling the co-defendant
“don’t do it.”26  Even though Ellis “contributed to his own demise by pleading
guilty,” the supreme court held the trial court should not have accepted the plea
because it was “accompanied with a protestation of innocence and
unaccompanied by evidence showing a factual basis for guilt.”27 

C. State Cannot Withdraw from Plea Agreement Because It Failed
to Notify Victim

Article 1, Section 13 of the Indiana Constitution provides rights to crime
victims but expressly limits those rights if they “infringe upon the constitutional
rights of the accused.”28 In Messersmith v. State,29 the trial court accepted a plea
agreement from the State and Defendant, but later granted the State’s request to
withdraw from the agreement because it had entered the agreement without
notifying the victim.30 Trial courts sometimes have discretion to revoke plea
agreements, such as when defendants claim innocence at sentencing or breach the
terms of the plea agreement.3 1 But “due process requires that the government
uphold its side of the bargain,” and thus the trial court abused its discretion by
allowing the State to void the agreement based on its failure to notify the victim.32

D. Strict Compliance Not Required When Sufficient Notice Was Given

Although grounded in a civil contempt statute, Reynolds v. Reynolds,33 has
potential relevance in the criminal realm. There, the Indiana Supreme Court held
that strict compliance with the statute can be excused if the party in contempt has
been sufficiently notified of their contempt.34 Justice Slaughter dissented because
the plain language of the statute Indiana Code section 34-47-3-5(a) “required the
trial court to issue a rule to show cause detailing the factual basis for Father's
alleged contempt,” which did not occur.35  

E. Denial of Right to Make Closing Argument in Bench Trial

In Nickels v. State,36 the trial court erred in preventing defense counsel from

25. Id. at 648. 

26. Id. 

27. Id. at 651 (quoting Boles v. State, 303 N.E. 2d 645, 654 (Ind. 1973)). 

28. IND. CONST. art. 1, § 13.

29. 70 N.E.3d 861 (Ind. Ct. App. 2017).

30. Id. at 863. 

31. Id. at 864-65. 

32. Id. at 865 (citing Santobello v. New York, 404 U.S. 257, 262 (1971)).

33. 64 N.E.3d 829 (Ind. 2016).

34. Id. at 833. 

35. Id. at 836.

36. 81 N.E.3d 1092 (Ind. Ct. App. 2017).



2018] CRIMINAL LAW 1019

making a final argument during a bench trial.37 At the close of evidence in a
domestic battery case, the trial court allowed the State the opportunity to make
an argument, which was interrupted to announce it was finding for the
State—only then, only after it had already announced its intention to find against
her, was the defendant asked for an argument.38 Defense counsel simply
responded that the State failed to meet its burden of proof, and the trial court
immediately asked for sentencing recommendations.39 

An opportunity to make a closing argument is a basic element of the criminal
process; “it clarifies and sharpens the issues, gives the defense one last chance to
persuade the trier of fact there may be reasonable doubt of the defendant’s guilt,
and, in a bench trial, aids the judge's decision-making by providing opposing
viewpoints.”40 Concluding that the trial court’s “‘invitation’ for defense counsel
to give closing argument was at best an empty formality,” the court of appeals
reversed the convictions and remanded for a new trial.41 

IV. APPELLATE REVIEW OF VIDEO EVIDENCE

As cameras proliferate—on smartphones, as police body cameras, and for
security, to name a few—courts must grapple with a variety of issues with video
evidence. As discussed in a past survey article,4 2 the Indiana Supreme Court held
in 2013 that it “consider[s] video evidence admitted in the trial court to be a
necessary part of the record on appeal, just like any other type of
evidence.”43 “And just like any other type of evidence, video is subject to
conflicting interpretations.”44 Although the deputy's testimony of driving near a
fog line conflicted to some extent with the police vehicle video, the supreme court
emphasized the importance of the police officer's “experience and expertise,”
which “led the trial judge to weigh [the officer's] testimony more heavily than the
video evidence” and “decline[ed] Robinson's invitation to substitute [Indiana
Supreme Court’s] own judgment for that of the trial court and rebalance the scales
in [Robinson’s] favor.”45

37. Id. at 1093.

38. Id. at 1095. 

39. Id. at 1094-95.

40. Id. at 1096 (citing Herring v. New York, 422 U.S. 853, 864-65 (1975)). 

41. Id. at 1095, 1097.

42. Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 48 IND.

L. REV. 1241, 1247-48 (2015).

43. Robinson v. State, 5 N.E.3d 362, 366 (Ind. 2014).

44. Id.

45. Id. at 367. The Indiana Supreme Court took a somewhat different approach a year before

Robinson, though, in a case where a school liaison officer believed a student had forcibly resisted

arrest. See generally K.W. v. State, 984 N.E.2d 610 (Ind. 2013). In reversing the juvenile court’s

true finding, the supreme court mentioned both the officer's testimony and video of the incident,

seemingly placing more weight on the video. “The surveillance video further confirms Sergeant

Smith’s restrained and cautious characterization of K.W.’s conduct. It shows K.W. turning and



1020 INDIANA LAW REVIEW [Vol. 51:1015

Love v. State,46 decided in 2017, cites and narrowly expands Robinson by
supplementing the “standard of review for video evidence to add a narrow
failsafe.”47 Significant deference is still afforded to fact-finder “until there is a
reason such deference is not appropriate.”48 Reversal is warranted only when “the
video evidence indisputably contradicts the trial court's findings,” which means
that “no reasonable person could view the video and conclude otherwise.”4 9 The
court provided specific guidance for assessing whether video is indisputable,
which includes “the video quality including whether the video is grainy or
otherwise obscured, the lighting, the angle, the audio and whether the video is a
complete depiction of the events at issue, among other things.”50

Indiana’s deferential approach appears to place it among the majority of
courts that have addressed the issue.51 

V. CRIME OR NOT A CRIME?

As suggested in previous survey articles, challenges to the sufficiency of
evidence in a criminal case are often raised and frequently fail. This section
begins with cases where convictions were upheld based on finding of sufficient
evidence and ends with cases in which the appellate courts reversed for lack of
evidence.

A. Not a Crime

1. Ohio Burglary Statute “Substantially Similar” to Indiana’s for SVF.—In
State v. Hancock,52 the Indiana Supreme Court found the Ohio offense of second
degree burglary was substantially similar to Indiana’s Level 4 burglary; therefore,
the Ohio burglary conviction made the defendant eligible to be a serious violent
felon.53 Although the phrase “any criminal offense” in the Ohio statute appears
to make it broader than Indiana’s statute, Ohio courts have interpreted their
statute to apply to a person who intends to commit theft, rendering the statute
substantially similar to Indiana’s statute.54 

Justice David, dissented, opining that the Ohio statute is broader than the

taking a step away from Sergeant Smith while his arm was still in the officer’s grasp . . . .” Id. at

613 n.1.

46. 73 N.E.3d 693 (Ind. 2017).

47. Id. at 695.

48. Id. at 699.

49. Id.

50. Id. 

51. See generally Kevin W. Bufford, Appellate Review - the Split on the Proper Standard of

Review for Police Video Evidence - Scott v. Harris, 550 U.S. 372 (2007), 39 AM. J. TRIAL ADVOC.

447, 449-54 (2015).

52. 65 N.E.3d 585 (Ind. 2016).

53. Id. at 592-93.

54. Id. at 589-90. 



2018] CRIMINAL LAW 1021

Indiana statute—by the words “any criminal offense.”55 Thus, that any
misdemeanor offense might suffice for burglary in Ohio is more than a mere
“academic possibility,” such as a person who breaks into a home and commits a
non-theft misdemeanor, like stalking.56 

Finally and more broadly, the court observed that trial “[c]ourts may of
course perform their own research,” but it “is unrealistic to expect our
increasingly busy trial courts to undertake such efforts.”57 Thus, “[t]he onus of
presenting another jurisdiction’s law lies properly with the party relying on that
law.”58

2. Battery Conviction Affirmed Over Claim of Parental Discipline
Privilege.—Indiana’s robust parental discipline privilege may offer a defense to
the battery of children based on a weighing of factors adopted the Indiana
Supreme Court in Willis v. State in 2008:

(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
(c) the nature of his offense and his apparent motive;
(d) the influence of his example upon other children of the same family
or group;
(e) whether the force or confinement is reasonably necessary and
appropriate to compel obedience to a proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading,
or likely to cause serious or permanent harm.59

In Carter v. State,60 the defendant punished his fourteen-year-old daughter for
dishonesty and “offer[ing] herself” to boys through pictures posted on social
media.61 The majority affirmed the battery conviction, emphasizing the trial
court’s role in weighing evidence and assessing credibility related to parental
discipline.62 Some form of punishment was warranted “to control and deter
M.C.’s escalating defiance and dangerous behavior,” and the majority declined
to override the trial court’s balancing of the Willis factors, which found “at least
fourteen strikes with a belt which resulted in significant bruising and lasting pain”
excessive.63 

55. Id. at 593.

56. Id. at 593. 

57. Id. at 593 n.8.

58. Id.

59. 888 N.E.2d 177, 182 (Ind. 2008) (quoting RESTATEMENT (SECOND) OF TORTS, § 150

(1965)); see generally IND. CODE § 35-41-3-1 (2017) (“A person is justified in engaging in conduct

otherwise prohibited if he has legal authority to do so.”).

60. 67 N.E.3d 1041 (Ind. Ct. App. 2016), trans. denied, 80 N.E.3d 180 (Ind. 2017).

61. Id. at 1043.

62. Id. at 1048.

63. Id.



1022 INDIANA LAW REVIEW [Vol. 51:1015

Judge Crone wrote a separate opinion “reluctantly” concurring.64 He
expressed concern about the dramatically different attitudes within generations
and cultures regarding corporal punishment of children and reiterated the
majority’s concerns that the “vague reasonableness standard” from Willis made
it difficult for prosecutors and courts to determine when a “law-abiding citizen”
becomes a “criminal.”65 He asked rhetorically: “If the purpose of the criminal law
is to put a person on notice of what conduct is proscribed and what is permitted,
then how can one’s guilt or innocence depend upon how someone else disciplines
his or her children when there is no consensus about what is appropriate?”66

3. Criminal Recklessness for Firing “into” a Dwelling.—The base criminal
recklessness offense is a Class B misdemeanor but may be elevated to a Level 5
felony when the reckless act “is committed by shooting a firearm into an
inhabited dwelling or other building or place where people are likely to gather.”67

In Williams v. State,68 the defendant told police he fired a gun at a raccoon in
a residential neighborhood.69 The bullet “entered the siding of one house, passed
through the corner exiting that house, ricocheted, and lodged in the siding of the
second story of another house.”70  Applying a “plain reading” of the term “into,”
the court of appeals found that the siding of a house “delineates the boundary of
the dwelling,” and “[t]he extent to which a bullet penetrates the dwelling is a
matter of degree, but is ‘into’ the dwelling, nonetheless.”71 This reading of the
statute further supported “policy considerations” by “protecting from the risk of
injury due to gunfire those who might be present in an inhabited dwelling.”72

4. Burglary Conviction Affirmed for House Squatter.—In Brown v. State,73

the court of appeals found sufficient evidence of burglary when the defendant
occupied a home being prepared for sale after foreclosure.74 The court found
ample evidence of his intent to commit a felony because the defendant “had no
intention of vacating the [p]roperty” when he “broke into the house with the
intent to use the house as his personal residence” by moving in his personal
belongings, changing the locks, and posting no-trespassing signs.75 Similarly, the
defendant could not rely on the doctrine of adverse possession because his
possession was a mere two months, much less than the required ten years, and he
had no claim of title for the property.76 

64. Id. at 1049.

65. Id. 

66. Id.

67. IND. CODE § 35-42-2-2(b)(2)(A) (2017) (emphasis added).

68. 64 N.E.3d 226 (Ind. Ct. App. 2016).

69. Id. at 228.

70. Id. at 230. 

71. Id. 

72. Id.

73. 64 N.E.3d 1219 (Ind. Ct. App. 2016), trans. denied, 88 N.E.3d 1078 (Ind. 2017).

74. Id. at 1232. 

75. Id. at 1231. 

76. Id. at 1232.



2018] CRIMINAL LAW 1023

5. Sufficient Evidence of Auto Theft.—In Thacker v. State,77 the defendant
argued that his possession of a vehicle six days after it was stolen was insufficient
to prove auto theft.78 Although possession of “recently stolen” property may be
sufficient to support a theft conviction, additional evidence is required when the
theft is not recent, such as case involving possession two days after the theft.79

In Thacker, the court of appeals found ample additional evidence to support
the inference that the defendant knew the vehicle he possessed had been stolen.
The State offered evidence of pry marks around the passenger window, which had
been “busted out,” in addition to damage to a door and a “ripped off” gas cap.80 
In addition to the damage, the defendant and his companion attempted to flee
when encountered by police.81 

6. Possession of Child Pornography Includes Viewing Images on a
Computer.—A defendant commits possession of child pornography if he
“intentionally pointed a web browser to certain websites containing images of
child pornography, and intentionally viewed the pornographic images therein,”
the court of appeals held in Eckrich v. State.82 That the defendant did not know
of the caching process for storing images on his computer was immaterial; he
controlled when the images would appear and for how long—“free to use the
image as he desired” while on his screen.83 The case was originally issued as a
memorandum decision but later published at the State’s request.84 

7. Pavement can be a Deadly Weapon.—In Burgh v. State,85 the court of
appeals held as a matter of first impression that “the paved surface of a parking
lot” used in a manner “readily capable of causing serious bodily injury” can be
a “deadly weapon,” thus elevating the battery charge to a Level 5 felony.86 The
defendant used the pavement as a blunt object into which he smashed the victim’s
skull, similar to the use of a rock, which was previously held to fall within the
statute.87 The deadly weapon definition is not limited to moveable objects but can
extend to stationary objects if used in a manner readily capable of causing serious
injury.88 

8. Violation of Protective Order for Communication Beyond Discussing
Parenting Time.—Although protective orders generally prohibit any contact, trial
courts may include provisions to allow limited contact, such as discussions of

77. 62 N.E.3d 1250 (Ind. Ct. App. 2016).

78. Id. at 1252.

79. Id. 

80. Id. 

81. Id.

82. 73 N.E.3d 744, 746 (Ind. Ct. App.), trans. denied, 88 N.E.3d 1079 (Ind. 2017).

83. Id. at 746-47. 

84. Id. at 744. 

85. 79 N.E.3d 955 (Ind. Ct. App. 2017).

86. Id. at 956-58.

87. Id. at 957. 

88. Id. at 958. 



1024 INDIANA LAW REVIEW [Vol. 51:1015

parenting time issues. In Jordan v. State,89 however, the defendant exceeded the
scope of permissible communication when he “used aggressive words, including
ad hominem attacks” when communicating to the protected person.90 

The court also rejected Jordan’s argument of insufficient notice of the terms
of the protective order, which were provided orally by law enforcement before
a written copy was mailed to him.91 Reiterating that oral notice may be sufficient
when it includes “‘adequate indication of the order’s terms,’”92 the appellate court
recited Jordan’s own testimony that the officer told him he could not contact the
protected person, “which is exactly what he did when he left her the voicemail
message.”93 

9. Neglect of Dependent Conviction Upheld Despite Defendant’s IQ of Sixty-
Seven.—Four months after his birth, an extremely malnourished baby boy who
weighed just over six pounds and had bed sores on his back died at home, in
Pierson v. State.94 Charged with murder and neglect of a dependent, his father
pursued a defense of insanity based on his intellectual disability of an IQ
consistently around sixty-seven.95 A jury convicted him of neglect of a dependent,
which was affirmed on appeal.96 The court of appeals pointed to expert testimony
that the defendant “would be capable of basic life tasks, like feeding a child,” and
noted he had taken basic care of three older children, “including changing them,
playing with them, and feeding them.”97 

Whether the defendant knowingly and voluntarily neglected his child was “an
extremely difficult and fact-sensitive inquiry, which our justice system reserves
for a jury.”98 Although the case was a “tragedy” that resulted in sending a man “to
prison for failing to do what he may be barely capable of doing,” the court of
appeals emphasized the standard of review forbids an appellate court from
“disturbing the determination of the jury” when some of the conflicting evidence
suggested he “was capable of understanding the harm that the failure to feed [his
son] was inflicting.”99 

B. Cases Reversing Convictions

1. Resisting by Flight.—Although Indiana’s appellate courts frequently
address challenges to the sufficiency of evidence for “forcibly” resisting law

89. 77 N.E.3d 1271 (Ind. Ct. App. 2017).

90. Id. at 1273. 

91. Id. at 1274.

92. Id (quoting Tharp v. State, 942 N.E.2d 814, 818 (Ind. 2011)).

93. Id.

94. 73 N.E.3d 737, 738-39 (Ind. Ct. App.), trans. denied, 88 N.E.3d 1079 (Ind. 2017).

95. Id. at 739.

96. Id. at 740-44.

97. Id. at 741. 

98. Id. 

99. Id. 



2018] CRIMINAL LAW 1025

enforcement,100 they are occasionally presented with challenges to convictions for
resisting by “flee[ing] from a law enforcement officer after the officer has, by
visible or audible means . . . identified himself or herself and ordered the person
to stop.”101 Flight in this context requires “a knowing attempt to escape law
enforcement when the defendant is aware that a law enforcement officer has
ordered him to stop or remain in place once there,” as explained last year in
Cowans v. State.102

In West v. State,103 a grandmother walked toward a bedroom to protect her
two-year-old grandson as police raided her home.104 Relying on Cowans and the
importance of the defendant’s intent, the court of appeals reversed, finding no
evidence the defendant “intended to flee, escape, or even unnecessarily prolong
her exit from the home.”105 Nor was there any evidence she was ordered by police
to stop “in the twenty seconds of chaos during which West is alleged to have fled
from police by walking toward her grandson’s bedroom”; rather, officers had
“instructed everyone inside to exit.”106 

2. Handgun Location Is an Essential Element of Carrying Without a
License.—Interpreting the 2003 version of the statute, in Webster v. State107 the
court of appeals reiterated whether a handgun is on a person’s own property or
fixed place of business is an essential element of the offense—not an affirmative
defense or exception to the statute.108 The State offered no evidence that the
address where an unlicensed handgun was found was not the defendant’s
dwelling, property, or fixed place of business.109 Therefore, the trial court “clearly
erred” when it denied a motion for involuntary dismissal.110 Since 2003, the
language of the statute has changed, but the same principle continues to apply: the
State has the burden to prove the defendant carried a handgun in a place “other
than” one permitted under the statute.111

3. Handgun Obtained During Burglary Cannot Enhance Charge.—The base
burglary offense is a Level 5 felony but may be enhanced to a Level 2 felony if
“committed while armed with a deadly weapon.”112 In State v. McHenry, a

100. See, e.g., Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013) (discussing several reversed

cases).

101. IND. CODE § 35-44.1-3-1(a)(3) (2017). 

102. 53 N.E.3d 540, 545 (Ind. Ct. App. 2016) (quoting Wellman v. State, 703 N.E.2d 1061,

1063 (Ind. Ct. App. 1998)). 

103. 85 N.E.3d 608 (Ind. Ct. App. 2017).

104. Id. at 611.

105. Id. 

106. Id. 

107. 64 N.E.3d 919 (Ind. Ct. App. 2016).

108. Id. at 921-22. 

109. Id.

110. Id.

111. Webster, 64 N.E.3d at 922; compare IND. CODE § 35-47-2-1(a) (2017), with IND. CODE

§ 35-47-2-1(a) (2003).

112. IND. CODE § 35-43-2-1(3)(A) (2017).



1026 INDIANA LAW REVIEW [Vol. 51:1015

defendant who stole a gun during a burglary was charged with a Level 2
offense.113 

The court of appeals upheld the trial court’s dismissal of the Level 2 offense,
explaining that “a person is not armed merely by virtue of possessing a
weapon.”114 Specifically, the defendant had not “handled the gun in a manner
indicative of using it or involving it in the crime in any way” but instead “her sole
objective appears to have been the theft of items that could be traded for
drugs.”115 Although many other jurisdictions have allowed enhanced charges
when a defendant who enters a dwelling unarmed acquires a weapon during a
burglary, the court of appeals concluded, based on the plain language of the
statute, “the degree of the offense of burglary does not change as a result of the
nature of the items stolen.”116 

VI. REMEDY FOR WRONG MENS REA AT BENCH TRIAL

The judge presiding over the bench trial in Miller v. State117 found the
defendant guilty of attempted murder because he “knowingly or intentionally”
attempted to commit murder.118 In a per curiam opinion on transfer, the Indiana
Supreme Court agreed with the court of appeals that the judge applied the wrong
mens rea standard in finding the defendant guilty of attempted murder.119

However, the supreme court remanded not for a new trial, as the court of appeals
had, but simply for the same judge to reconsider the evidence under the correct
mens rea standard, which required the State to prove the defendant had the
specific intent to kill the victim.1 20 Justice Slaughter dissented regarding the
remedy, believing that Miller should receive a new trial.121 Although unusually
short, the opinion appears to address an issue of first impression, and the outcome
was somewhat surprising for at least a few reasons.122 

First, the court has long and consistently set a high bar of expectations for our
trial courts. When mistakes are made, remedies proportionate to the error and its
effect on the ultimate fairness of the proceeding are the norm. For example, the
court recently discussed and applied “the well-settled due process right to an
impartial court as necessary to a fair proceeding,” noting that cases have primarily

113. State v. McHenry, 74 N.E.3d 577, 579 (Ind. Ct. App.), trans. denied, 88 N.E.3d 1079

(Ind. 2017).

114. Id. at 581.

115. Id.

116. Id.

117. 77 N.E.3d 1196 (Ind. 2017). 

118. Id. at 1197.

119. Id.

120. Id. 

121. Id. at 1198 (Slaughter, J., dissenting). 

122. This author served as counsel for the Marion County Public Defender Agency, which

filed an amicus brief in support of Miller’s petition for rehearing. Much of this section is derived

from that brief. 



2018] CRIMINAL LAW 1027

focused on judicial comments in front of jurors while making clear that
inappropriate comments at a bench trial are just as problematic and damaging.12 3

Unlike in that case, the judge in Miller did not use coarse language or insult
parties by name-calling, but concern of similar magnitude is warranted when a
trial court applies an incorrect legal standard to the ultimate determination of
guilt.124 

The gravity of the error, reciting and applying the incorrect legal standard
when rendering a verdict, is similar to a trial court’s post-verdict comment on
evidence that contradicts and undermines its verdict, which has warranted
vacating a conviction on sufficiency grounds.125 The error is much deeper than the
trial court making one erroneous ruling in the course of a trial,126 or the trial court
relying on an improper consideration and a number of proper ones during
sentencing.127 In contrast, the recitation and application of the wrong legal
standard in a bench trial—originating in the State’s charging information—is a
cause for greater concern because of the potentially serious consequences.

Miller may also change the considerations of counsel in advising clients
about whether to waive jury in a felony case or request a jury in a misdemeanor
case.128 Before Miller, defense counsel would sometimes recommend clients
consider a bench trial in cases involving complicated legal issues, which judges
may be better equipped to sort through than jurors, and cases with especially
unpleasant facts that judges may be better positioned to look beyond in applying
the law to reach a verdict. When defendants choose a bench trial, they often
express their belief that the judge will be fairer—and may anticipate an

123. In re J.K., 30 N.E.3d 695, 699 (Ind. 2015). 

124. See, e.g., Galloway v. State, 938 N.E.2d 699, 703 (Ind. 2010) (reversing a guilty but

mentally ill verdict in a murder case on sufficiency grounds in light of unanimous expert opinion

of insanity, while also addressing the trial court’s improper remarks, including those made at

sentencing); Hollinsworth v. State, 928 N.E.2d 201, 201-02 (Ind. 2010) (granting transfer to remand

a misdemeanor case for a new trial based on the trial court’s comments showing a lack of

impartiality).

125. Kribs v. State, 917 N.E.2d 1249, 1250 (Ind. Ct. App. 2009) (“Following a bench trial that

resulted in Kribs’s conviction, the trial court observed that Kribs was unaware that he had a weapon

in his possession at the time of the incident in question. Given this finding, which we may not and

will not second guess, we are compelled to reverse for insufficient evidence.”). 

126. See generally Konopasek v. State, 946 N.E.2d 23 (Ind. 2011) (addressing the judicial-

temperance presumption).

127. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.), clarified on reh’g, 875 N.E.2d 218 (Ind.

2007) (explaining that “remand for resentencing may be the appropriate remedy if we cannot say

with confidence that the trial court would have imposed the same sentence had it properly

considered reasons that enjoy support in the record.”). 

128. The Rules of Professional Conduct require counsel to “reasonably consult with the client

about the means by which the client’s objectives are to be accomplished.” IND. PROF’L CONDUCT

R. 1.4(a)(2). A later part of that rule requires lawyers “explain a matter to the extent reasonably

necessary to permit the client to make informed decisions regarding the representation.” IND.

PROF’L CONDUCT R. 1.4(b). 



1028 INDIANA LAW REVIEW [Vol. 51:1015

explanation for a decision instead of the jury’s reading of a preprinted verdict
form. If the judge does not know the law (or recites and applies the wrong law)
defendants do not get what they bargained for in waiving jury. 

Finally, confidence in the system is diminished when those sitting in a
courtroom—lawyers, the public, and the press—are left to question the depth and
breadth of justice in Indiana courtrooms. Perception matters, and a remand for
new findings in the face of a significant, deep-seated misstatement of the law
creates an undesirable perception for litigants and the public. 

The Indiana Supreme Court has long emphasized the essential, personal role
of a defendant in deciding whether to proceed to a jury or bench trial, the latter
of which requires a personal waiver made knowingly and intelligently in felony
cases.129 When defendants elect a bench trial, they necessarily expect judges to
follow the law. Indeed, judges—with years of legal education, often decades of
experience, and heightened continuing education requirements—are legal experts
from whom counsel, litigants, and the public should expect more than they do of
jurors, laypeople who generally lack any legal training and may be thrust into a
legal dispute once or twice in their lifetimes. 

Although initially decided as a 3-1 opinion, Chief Justice Rush joined Justice
Slaughter in voting to grant rehearing.130 Thus, considering the division among
the justices, the issue may resurface in some form in a future case. 

VII. APPELLATE SENTENCE REVIEW UNDER RULE 7(B)

For many years, substantive appellate sentence review under Appellate Rule
7(B) was a one-way street, with the supreme court reducing a few sentences on
transfer each year.131 That rule, which implements the Indiana Constitution’s
power to review and revise sentences, allows appellate courts to revise a
statutorily authorized sentence “if, after due consideration of the trial court’s
decision, the court finds that the sentence is inappropriate in light of the nature
of the offense and the character of the offender.”132 As summarized in recent
surveys, the Indiana Supreme Court took a different course in 2012 in issuing
opinions reinstating the trial court’s sentence after vacating the court of appeals-
ordered reductions; the court also became considerably less likely to grant
transfer to reduce a sentence.133 

A. Sentences Reduced

During the survey period, the justices reduced just one sentence, in a case

129. Horton v. State, 51 N.E.3d 1154, 1160 (Ind. 2016). 

130. Rehearing orders are not published but may be accessed through the court’s online

docket. Appellate Case Search, COURTS.IN.GOV, https://publicaccess.courts.in.gov/docket

[https://perma.cc/BZ3T-6M53] (last visited Mar. 28, 2018).

131. See Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 46

IND. L. REV. 1033, 1057-62 (2013).

132. IND. R. APP. P. 7(B). 

133. Schumm, supra note 131, at 1058-59.



2018] CRIMINAL LAW 1029

involving a defendant suffering from mental illness, while reinstating the trial
court’s sentence after a reduction ordered by the court of appeals in another
case.134 The court of appeals reduced a net of six sentences during the survey
period.135 Although the supreme court statistics repeat those of last year, the
number of reductions by the court of appeals doubled from the three reductions
last year.136 

1. Indiana Supreme Court.—In short per curiam opinions during the survey
period, the Indiana Supreme Court reduced one sentence and reversed the court
of appeals’ reduction in another.137 

First, in Wampler v. State,138 the court reduced a sentence based on a
defendant’s long-standing mental illness.139 There, a defendant with a long history
of psychiatric hospitalizations was sentenced to thirty-three years in prison after
being convicted of burglary and adjudicated a habitual offender.140 Obsessed with
a former schoolmate, the defendant had entered his home where he watched him
sleep, took a beer, and left a note.141 

Under Appellate Rule 7(B), the supreme court reduced the sentence to sixteen
years, based in part on the “strength of Judge Mathias’s dissent,” which it quoted
at length: 

The real tragedy is that Wampler was not tried under the closest
alternatives we have to humane treatment of the mentally ill: as insane
at the time of the behavior charged or as someone who was guilty but
mentally ill. Had Wampler been found not guilty by reason of insanity,
temporary or permanent commitment proceedings would have been
commenced immediately for the treatment Wampler needs, and he might
never emerge from the mental health system. Had he been found guilty
but mentally ill, at least Wampler would have qualified for mandatory
evaluation and treatment in such manner as is psychiatrically indicated
for the defendant's mental illness. If found guilty but mentally ill, that
treatment could also have been carried out by transfer to a state mental
health facility.142

But, in Whiteside v. State,143 the Indiana Supreme Court reinstated a trial
court’s sixty-year sentence (maximum terms of twenty years, served

134. See generally Wampler v. State, 67 N.E.3d 633 (Ind. 2017); Whiteside v. State, 76

N.E.3d 844 (Ind. 2017).

135. See infra Part VII.A.2.

136. Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 50 IND.

L. REV. 1241, 1259 (2017).

137. See generally Wampler, 67 N.E.3d 633; Whiteside, 76 N.E.3d 844.

138. See generally Wampler, 67 N.E.3d 633.

139. Id. at 635.

140. Id. at 634.

141. Id. 

142. Id. at 634-35 (internal citations and quotation marks omitted). 

143. 76 N.E.3d 844 (Ind. 2017).



1030 INDIANA LAW REVIEW [Vol. 51:1015

consecutively on three counts) for rape and criminal deviate conduct.144 Without
specific discussion of disagreement with the court of appeals’ reduction to thirty
years, the per curiam opinion briefly recited the facts of the case before
concluding with its customary language of the legal standards and its “collective
judgment” that the sentence did not warrant revision.145 

Although a third case involved an underlying sentencing challenge, the grant
of transfer and per curiam opinion in Karp v. State146 was solely to note the three-
justice majority did not share the court of appeals’ assessment of the defendant’s
sentencing argument, which had been described as “specious and not supported
by cogent reasoning.”147 Vacating just the small portion of the court of appeals’
opinion, the twenty-four-year sentence was affirmed.148

Unlike the reductions of the Shepard-led court, which often reduced
sentences in cases involving lengthy sentences imposed in child sex crimes
cases,149 the current justices have shown little inclination to reduce sentences in
cases with child victims150—instead limiting reductions largely to cases involving
young defendants, drug-related crimes, and cases like Wampler involving
defendants with serious mental illness.151 

2. Court of Appeals.—As explained in recent survey articles, the Indiana
Supreme Court’s decreased receptiveness to reducing sentences has been greeted
by a similar trend in the court of appeals.152 Instead of reducing several sentences
each year (twenty-six in one survey period, sixteen in another) at the beginning
of this decade, one or two reductions has become more common in recent
years.15 3 This survey period, a net of six sentences were reduced,154 which is just

144. Id. at 846.

145. Id. 

146. 61 N.E.3d 271 (Ind. 2016).

147. Id. at 271.

148. Id.

149. Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 42 IND.

L. REV. 937, 949 (2009).

150. The unlikelihood of a reduction is highlighted by cases such as McCain v. State, 88

N.E.3d 1066, 1067 (Ind. 2018), which was decided after this survey period but reinstated a trial

court’s sentence after a reduction by the court of appeals during the survey period. There, a twenty-

three-year old defendant with no criminal history who had pleaded guilty was sentenced to forty

years for a single incident in which she “placed her mouth on her one-year-old son's penis while

bathing him.” Id. at 1066-67.

151. Wampler v. State, 67 N.E.3d 633 (Ind. 2017); Schumm, supra note 131, at 1047-61.

152. Schumm, supra note 136, at 1259.

153. Id.

154. As discussed above, the court of appeals reduced the sentence in Whiteside, but that

reduction was vacated by the Indiana Supreme Court and therefore is excluded from the “net” count

here. See supra notes 144-46 and accompanying text (discussing Whiteside). The court of appeals’

reduction in McCain was also vacated by the supreme court, as explained in footnote 151, and will

be discussed in next year’s survey. 



2018] CRIMINAL LAW 1031

over two percent of the 272 requests from criminal defendants.155

Two of those reductions were in published opinions. First, in McFall v.
State,156 the court of appeals reduced a forty-year sentence for Class A felony
manufacturing/dealing methamphetamine to thirty years (with fourteen of those
years executed).157 The nature of the offense appeared to cut against a reduction;
the defendant manufactured meth “in a drug house in which a housemate’s
children also lived.”1 5 8  Rather, the opinion relied heavily on the character of the
offender, noting the offense was the first felony conviction for the twenty-seven-
year-old defendant, who had made “positive changes in her life since she has
been incarcerated.”159 

Applying Eckelbarger v. State,160 which was discussed in last year’s survey
and held that consecutive sentences were inappropriate for drug convictions
arising from two controlled buys and a subsequent search of the defendant’s
home,161 in Walton v. State,162 the court of appeals found that “controlled buys
resulted in five dealing convictions, and the subsequent search resulted in
additional drug-related convictions.”163 “Because th[o]se additional drug-related
convictions [we]re supported by evidence seized as a direct result of the
controlled buys,” the court remanded to the trial court to impose a sentence of
forty-two years: thirty-four years for the longest of the drug dealing counts (with
the shorter drug-related sentences to run concurrently) and eight years on each of
the non-drug-related gun convictions.164

Judge Bailey dissented on a number of issues, although he agreed with the 
majority that the drug-related counts must run concurrently.165 “However, given
that doing so generates a conflict with the statutory sentencing limit and effects

155. The most recent year’s data came from a Westlaw search of Indiana Court of Appeals’

cases and is on file with the author. The author thanks Josh Woodward, IU-McKinney Class of

2017, for his invaluable research assistance. The total number of sentencing appeals and successful

challenges split fairly evenly between appeals after trial (three of 122 successful) and after guilty

pleas (three of 152 successful). The supreme court upheld the enforceability of plea provisions that

waive a right to challenge a sentence on appeal in Creech v. State, 887 N.E.2d 73 (Ind. 2008).

Although those provisions are now standard in many counties, they appear to be never or rarely

used in other counties or before certain judges.

156. 71 N.E.3d 383 (Ind. Ct. App. 2017).

157. Id. at 390-91.

158. Id. at 390. In a footnote, the court noted the offense was elevated to a Class A felony

because it occurred within 1,000 feet of a youth-program center, which is “no longer an enhancing

circumstance” under the current statute. Id. at 390 n.4 (citing IND. CODE § 35-48-1-16.5 (2016)). 

159. Id. at 391.

160. 51 N.E.3d 169 (Ind. 2016).  

161. Id. at 170-71.

162. 81 N.E.3d 679 (Ind. Ct. App. 2017).

163. Id. at 683-84.

164. Id. “(Walton acknowledges that his gun possession is distinguishable from his drug

crimes and is not subject to the Beno/Eckelbarger principle).” Id. at 684.

165. Id. at 684 (Bailey, J., dissenting).



1032 INDIANA LAW REVIEW [Vol. 51:1015

a notable change to the aggregate sentence length selected by the trial court, [he]
would defer to the judgment of the trial court and remand for resentencing.”166

Sentences were also reduced in four memorandum (unpublished) decisions.
In Martin v. State,167 the court of appeals reduced a sentence for child molesting
involving a female defendant with a “full-scale IQ of sixty-two” who had
repeatedly molested a boy in her mother’s daycare while he was six to ten years
old.168 The court drew analogies to several similar cases that had reduced
sentences for child molesting, beginning by acknowledging the defendant’s
“position of trust over B.H. and the fact that repeated incidents occurred over
several years are egregious circumstances.”169 Nevertheless, “B.H. was the only
victim and the alleged incidents all were similar”; “there was no evidence [the
defendant] used force or threats against B.H. and no evidence of physical injury
to him.”170 As to her character, the defendant lacked a criminal history and had
documented mental limitations.171 The court ordered the consecutive terms of
forty years for each count be served concurrently, reducing the eighty-year
sentence to forty.172 Judge Baker wrote separately, noting, “The majority ha[d]
eloquently explained why the eighty-year sentence is inappropriate” but opined
that “no more than the advisory sentence of thirty years” was appropriate in light
of the defendant’s mental limitations and lack of criminal history.173

In Longfellow v. State,174 the court of appeals reduced a maximum sentence
of ten years for child molesting as a Level 4 felony to the advisory term of six
years.175 Acknowledging the impact of the defendant’s “choice to touch the breast
of his granddaughter” on the victim and her family, the court nevertheless
concluded, “[T]he nature of this offense is no more than what the Indiana General
Assembly already took into consideration when it decided on the elements of the
crime.”176 As to his character, the court noted the defendant had no criminal
history, took responsibility for his actions by pleading guilty, and was “eighty-
two years old with significant medical issues, including a history of four heart
attacks, a stroke, shortness of breath, high cholesterol, high blood pressure,
memory loss, and heart problems.”177

166. Id. at 688.

167. No. 20A05-1605-CR-1016, 2017 WL 2990182 (Ind. Ct. App. July 14, 2017) (unpublished

disposition).

168. Id. at *1-2, *5.

169. Id. at *5.

170. Id.

171. Id. 

172. Id.

173. Id. at *5 (Baker, J., concurring and dissenting).

174. No. 34A02-1704-CR-817, 2017 WL 3758431 (Ind. Ct. App. Aug. 31, 2017) (unpublished

disposition). 

175. Id. at *2-3.

176. Id.

177. Id. at *3.



2018] CRIMINAL LAW 1033

In Kohne v. State,178 the defendant appealed his sentence of twelve years with
two of the years suspended for two counts of drunk driving causing death.179 As
to the offense, the court of appeals noted the “dire consequences of his conduct,
and the tragic effect the accident had on the [victims’] family, including their
young daughter,” who lost both of her parents in the accident.180 Nevertheless, the
defendant’s “conduct is what the elements of the crime already take into
consideration: the reckless choice of driving under the influence and causing the
death of an individual.”181 As to character, the defendant was 

sixty years old with significant medical issues, including congenital heart
failure, at the time of the sentencing hearing; he has been consistently
employed for most, if not all, of his adult life; he has a clean criminal
record; he accepted full responsibility for his actions; he showed remorse
by apologizing to the [victims’] family and sought their forgiveness; and
the pre-sentence investigation report indicates he is unlikely to
reoffend.182

The sentence was reduced to an “aggregate sentence of eight years in the [Indiana
Department of Correction (DOC)], with two years suspended to probation.”183

Finally, in Weathers v. State,184 a man “snuck a razor blade into jail during the
booking process because he wanted to harm himself” and attempted suicide in his
holding cell later that day.185 He pleaded guilty to Level 4 felony possession of
a deadly weapon while incarcerated and was sentenced to the maximum term of
twelve years.186 The defendant grounded his challenge solely in the nature of the
offense.187 Because his goal was to harm himself (and not another prisoner or
staff), the court of appeals ordered the sentence reduced to ten years.188

B. Possibility of an Increase

The power to review and revise sentences is not limited to reducing a
sentence. The Indiana Court of Appeals increased a sentence for the first time on
appeal in 2010 in Akard v. State,189 where the ninety-three-year sentence was

178. No. 01A02-1608-CR-1973, 2017 WL 1381364 (Ind. Ct. App. Apr. 18, 2017)

(unpublished disposition).

179. Id. at *1.

180. Id. at *1-2.

181. Id. at *2.

182. Id.

183. Id.

184. No. 63A01-1703-CR-683, 2017 WL 3710881 (Ind. Ct. App. Aug. 29, 2017) (unpublished

disposition).

185. Id. at *1.

186. Id.

187. Id. at *2. 

188. Id. 

189. 924 N.E.2d 202 (Ind. Ct. App.), aff’d in part, vacated in part, 937 N.E.2d 811, 814 (Ind.



1034 INDIANA LAW REVIEW [Vol. 51:1015

raised to 118 based on the horrendous nature of the crime.190 Akard relied on the
supreme court’s opinion in McCullough v. State,191 which made clear the power
to review and revise sentences including the ability to increase a sentence on
appeal—but only when the defendant requested a sentence reduction.192 Just a few
weeks after granting transfer and hearing oral argument in Akard, the supreme
court unanimously vacated the increased sentence, emphasizing that the
prosecutor had requested a ninety-three-year sentence in the trial court and the
Attorney General had argued that sentence was appropriate on appeal.193 The
opinion was a narrow one that largely begged the question of when an increased
sentence will be appropriate.194 Although no majority opinion since Akard has
increased a sentence on appeal, again in this year’s survey period two court of
appeals judges wrote separate opinions to express their willingness to do so in a
particular case.195 

1. State’s Cross-Appeal Fails, but One Judge Would Have Increased
Sentence.—Facing a range of two to eight years for Class C felony child
molesting, the defendant in Holt v. State196 was sentenced to four years.197 The
plea agreement required concurrent sentences on the two counts and provided the
State would not make a sentencing recommendation.198 The defendant requested
a reduction on appeal, and the State cross-appealed to request an increase to six
years for each conviction.199 The court of appeals concluded four years was not
inappropriate to warrant either an increase or reduction.200 As regards the
increase, the court relied on the supreme court’s opinion in Akard,201 where the
State “had requested a sentence ‘no greater’ than [ninety-three] years at
sentencing” and asserted on appeal that the sentence of ninety-three years was

2010).

190. Id. at 210-12.

191. 900 N.E.2d 745 (Ind. 2009).

192. Akard, 924 N.E.2d at 211 (citing McCullough, 900 N.E.2d at 750-51).

193. See Akard,  937 N.E.2d at 814 (“[W]e decline to increase the sentence here, particularly

in the context of the State's request for no greater sentence at trial and its assertion on appeal that

such is an appropriate sentence”). As explained in the 2011 survey, the Attorney General requested

increased sentences several times in the months after McCullough was issued. Joel M. Schumm,

Recent Developments in Indiana Criminal Law and Procedure, 44 IND. L. REV. 1135, 1156 (2011).

That practice severely curtailed in the months and years following the supreme court’s opinion in

Akard.

194. Schumm, supra note 136, at 1262.

195. During last year’s survey period, two court of appeals judges expressed a similar

willingness. See id. at 1262-63.

196. 62 N.E.3d 462 (Ind. Ct. App. 2016).

197. Id. at 465.

198. Id. at 464. 

199. Id.

200. Id. at 465-66.

201. See supra notes 190-96 and accompanying text.



2018] CRIMINAL LAW 1035

appropriate.202 The court in Holt found Akard analogous because the State
“agreed not to make a sentencing recommendation at sentencing, thereby
implicitly indicating that it would agree with the trial court's sentencing
determination.”203

Judge Bradford dissented and would have increased the sentence to eight
years.204 The defendant had been facing “a possible sentence of one hundred and
sixteen years for his most recent crimes against two young children” and had “a
history of delinquent behavior” of other sex crimes against children.205

2. Middle-School Teacher’s Sentence for Child Molesting Affirmed.—Facing
a possible thirty-six years for three Level 4 felony counts of child molesting, a
middle school teacher who molested a student was sentenced to twenty-seven
years with six of those suspended to probation in Murray v. State.2 0 6 In rejecting
a challenge to the appropriateness of the sentence, the court of appeals noted that
the defendant had “aggressively groomed a twelve-year-old child over the course
of a school year, pursuing her not only at school but also at church.”2 0 7 He also
exploited knowledge that she was “having emotional problems . . . to further
lodge himself in her life.”208 Moreover, the defendant “repeatedly and
aggressively violated [a] no contact order” with the victim, calling her more than
fifty times, “even at a time when he knew she was suicidal.”209 

Judge Crone concurred in the result, observing that he would have been
inclined to increase the sentence if the State had asked for a harsher sentence
based on the defendant’s “egregious betrayals of his positions of trust with [the
victim], his dozens of depraved phone calls to his emotionally vulnerable victim
in violation of a no-contact order, and his utter lack of remorse or acceptance of
responsibility.”210 

Thus, although McCullough makes clear the State does not need to cross-
appeal,211 Judge Crone’s concurring opinion in Murray might encourage the State
to do so in the future. And, if the State does cross-appeal, at least some judges on
the court of appeals may be inclined to increase the sentence even greater than the
request, as with Judge Bradford’s dissent in Holt.212 

C. Death & Life Without Parole Sentences

Although sentencing is usually the sole function of trial judges, the jury plays

202. Holt, 62 N.E.3d at 465 (quoting Akard v. State, 937 N.E.2d 811, 814 (Ind. 2010)). 

203. Id.

204. Id. at 466-67 (Bradford, J., dissenting).

205. Id. at 467 (Bradford, J., dissenting).

206. 74 N.E.3d 242, 243-44, 245 (Ind. Ct. App. 2017). 

207. Id. at 246. 

208. Id. 

209. Id. 

210. Id. (Crone, J., concurring).

211. See supra notes 192-93 and accompanying text.

212. See supra notes 205-06 and accompanying text.



1036 INDIANA LAW REVIEW [Vol. 51:1015

a determinative role when the State seeks a sentence of death or life without
parole.213 Two cases, directly appealed to the Indiana Supreme Court because they
involve such sentences,214 are discussed below. 

In Shoun v. State,215 the supreme court found the trial court did not commit
fundamental error by failing to find sua sponte that the defendant had an
intellectual disability, barring a life without parole sentence, when his trial
counsel withdrew the petition to determine whether he had such a disability.216

The opinion further found the sentence was neither unconstitutionally
disproportionate under Article 1, Section 16 of the Indiana Constitution or
inappropriate under Indiana Appellate Rule 7(B).217 The defendant had stabbed
the victim countless times, while she was still alive, “from inside her body,” and
“some of her organs were severed and removed.”218 

In Lewis v. State,219 the defendant was charged with murder and other
offenses, for which the State sought a sentence of life without parole.220 Although
the jury was unable to reach a unanimous verdict about the State’s proof of its
charged aggravating circumstance, the trial court nevertheless imposed a life
imprisonment without parole sentence.221 The defendant argued and the State
agreed that the “life sentence violated the Sixth Amendment because the sole
aggravating factor supporting the sentence was not determined by the trier of fact
beyond a reasonable doubt during the penalty phase.”222 Because the State
conceded it would no longer seek a life sentence and because the defendant was
“already [forty-three] years of age,” the supreme court “in the interests of judicial
economy exercise[d its] appellate prerogative to resentence him to a term of
years.”223

D. Appellate Sentence Review Looks to All Offenses Within a Plea Agreement

In Moyer v. State,224 the defendant pleaded guilty under “a single plea

213. IND. CODE § 35-50-2-9(e) (2017) (“If the jury reaches a sentencing recommendation, the

court shall sentence the defendant accordingly.”).

214. IND. R. APP. P. 4(A)(1). Appellate Rule 4 gives the court mandatory and exclusive

jurisdiction over death penalty and life without parole (LWOP) cases. Id. But Article VII, Section

4 of the Indiana Constitution simply requires the Indiana Supreme Court to hear appeals involving

a “sentence of death”—not LWOP cases. IND. CONST. art. 7, § 4.

215. 67 N.E.3d 635 (Ind. 2017).

216. Id. at 637.

217. Id. at 641-42.

218. Id. at 641.

219. 59 N.E.3d 967 (Ind. 2016).

220. Id. at 968.

221. Id.

222. Id. 

223. Id. at 968-69.

224. 83 N.E.3d 136 (Ind. Ct. App. 2017), trans. denied, Moyer v. State, No. 79A04-1703-CR-

477, 2017 WL 6027740 (Ind. Nov. 30, 2017).



2018] CRIMINAL LAW 1037

agreement that covered three separate causes against him.”225 The plea agreement
included all three cause numbers and specified what would occur in each case and
conviction, including dismissal of one entire case and several counts under
another.226 

Although he sought appellate review of his sentence on the remaining counts
for which he was sentenced, the court of appeals emphasized the importance of
the big picture.227 Failing to consider all three causes “would essentially amount
to ignoring important aspects of the contract between the parties, such as the
substantial benefit that he received in exchange for his guilty plea.”228 Relying on
Webb v. State,229 which held that a defendant may not limit appellate review of
a sentence “by merely challenging an individual sentence within a single order
that includes multiple sentences,” the court of appeals concluded that Moyer’s
“plea agreement represented a single transaction that ‘embodie[d] the entire
agreement between the parties.’”230 The opinion also noted its consistency with
the oft-cited principles from Cardwell v. State,231 namely that “appellate review
should focus on the forest—the aggregate sentence—rather than the
trees—consecutive or concurrent, number of counts, or length of the sentence on
any individual count.”232

VIII. OTHER SENTENCING CLAIMS

Outside the realm of reducing sentences under Appellate Rule 7(B), the
supreme and appellate court addressed other sentencing challenges. 

A. Confusion about Sentencing Range Requires Resentencing

In McGuire v. State,233 the defendant “pleaded guilty to one count of Class A
felony child molesting. During the plea hearing and at sentencing, the State,
defense counsel, and the trial court expressed agreement that the statutory
sentencing range for McGuire's crime was thirty to fifty years.”234 Sentenced to
forty years, McGuire argued on appeal that the trial court's sentence was
grounded in “a mistaken understanding of the minimum sentence.”235 Indeed, the
statutory range for sentencing was twenty to fifty years, with an advisory term of
thirty years.236 The court of appeals affirmed the sentence in a memorandum

225. Id. at 140.

226. Id.

227. See id. (considering all three causes).

228. Id. 

229. 941 N.E.2d 1082 (Ind. Ct. App. 2011).

230. Moyer, 83 N.E.3d at 140 (quoting Webb, 941 N.E.2d at 1087-88). 

231. 895 N.E.2d 1219 (Ind. 2008).

232. Id. at 1225. 

233. 77 N.E.3d 1198 (Ind. 2017).

234. Id. at 1199.

235. Id.

236. Id.



1038 INDIANA LAW REVIEW [Vol. 51:1015

decision.237 Although not entirely clear from the record, it believed the parties
were confused by a statute that permitted the trial court to suspend any portion of
the sentence exceeding thirty years.238 Despite the erroneous understanding of the
trial court, the court of appeals affirmed because it believed the trial court would
have imposed the same sentence if it had properly considered the facts and law.239

In a short per curiam opinion, the Indiana Supreme Court disagreed.240 That
the statute regarding suspension of the sentence allowed the trial court to suspend
a portion of McGuire's sentence “did not change the minimum sentence from
twenty to thirty years.”241 Relying on the somewhat analogous case from 2011,242

a per curiam opinion that ordered remand based on a misunderstanding of the
statutory penalties at sentencing,243 the court in McGuire ordered remand for
resentencing.244 Justice Massa dissented, believing the court of appeals’ decision
was correct, and he thus could not “join in ordering an unnecessary remand.”245

B. Defendant’s Youth Not a Mitigating Factor

The court of appeals found no abuse of discretion when the trial court failed
to find a defendant’s youthful age of twenty as a mitigating factor in Sanders v.
State.246 The opinion reiterated that “youth is not automatically a significant
mitigating circumstance”; the issue is “within the trial court’s discretion.”247 As
in an earlier case, “the trial court did not overlook the defendant’s youth but
specifically acknowledged it and chose not to find it as a mitigating
circumstance.”248 That said, there are seemingly limits to a trial court’s discretion;
a trial court cannot refuse to find a mitigator when “the mitigating evidence is
both significant and clearly supported by the record.”249

237. Id.

238. Id. (citing IND. CODE § 35-50-2-2(i) (repealed 2014)).

239. Id.

240. Id.

241. Id.

242. Id. (citing Miller v. State, 943 N.E.2d 348, 349 (Ind. 2011)).

243. Miller, 943 N.E.2d at 349. 

244. McGuire, 77 N.E.3d at 1199. 

245. Id. at 1200 (Massa, J., dissenting).

246. 71 N.E.3d 839, 842-43 (Ind. Ct. App. 2017), trans. denied, 88 N.E.3d 1076 (Ind. 2017). 

247. Id. at 843 (quoting and citing Smith v. State, 872 N.E.2d 169, 178 (Ind. Ct. App. 2007)). 

248. Id.

249. Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). In addition, some youthful

defendants may also secure a sentence reduction under Appellate Rule 7(B). See, e.g., Brown v.

State, 10 N.E.3d 1, 5, 7 (Ind. 2014) (determining sentence appropriateness under Appellate Rule

7(B) and stating that “this [c]ourt has not been hesitant to reduce maximum sentences for juveniles

convicted of murder.”).



2018] CRIMINAL LAW 1039

C. Defendant Entitled to Pretrial Credit on Concurrent Sentence

In Maciaszek v. State,250 a defendant with unrelated charges in other states
sought credit time toward burglary charges to which he pleaded guilty in
Indiana.251 The court of appeals reiterated: 

If a person incarcerated awaiting trial on more than one charge is
sentenced to concurrent terms for the separate crimes, he or she is
entitled to receive credit time applied against each separate term.
However, if the defendant receives consecutive terms, he or she is only
allowed credit time against the total or aggregate of the terms.252

Although he was not entitled to credit time for days served in other states on
unrelated charges, the defendant was entitled to the time spent in an Indiana jail
awaiting trial on the Indiana charges.253 Because neither the plea agreement nor
the sentencing order stated the Indiana sentence was consecutive to the New
Hampshire sentence, the sentences were presumed to be concurrent, which
entitled him to credit time.254

D. Trial Courts Must Inquire Directly of Defendant about Allocution255

Jones v. State,256 addresses the statutory and decisional law regarding
allocution at sentencing. The statutes, long tradition of allocution rights, and “low
demand upon judicial resources” compels trial courts to “inquire personally with
the defendant” about allocution.257 Asking counsel instead of the defendant was
fundamental error because “allocution is not an evidentiary matter or otherwise
subject to proof of prejudice upon offer of proof or appeal.”258 The court ordered
remand for a new sentencing hearing.259 Judge Vaidik dissented, distinguishing
precedent holding a personal waiver of jury trial is required and noting the
Indiana Supreme Court previously held “the right to be personally addressed
about the right of allocution 

250. 75 N.E.3d 1089 (Ind. Ct. App.), trans. denied, 88 N.E.3d 1079 (Ind. 2017).

251. Id. at 1090-91.

252. Id. at 1092 (quoting Payne v. State, 838 N.E.2d 503, 510 (Ind. Ct. App. 2005), trans.

denied). 

253. Id. at 1094-95. 

254. Id. at 1094. The case was also remanded for the trial court to determine his credit class.

The court of appeals was unable to determine whether the defendant should receive good time

credit because the record did not include his credit class. Id. at 1095.

255. The court of appeals decided another allocution case with the same name during the

survey period. Specifically, during hearings regarding a violation of community corrections the trial

court should permit defendants an opportunity to “make an allocution statement when she

request[s] to speak.” Jones v. State, 71 N.E.3d 412, 419 (Ind. Ct. App. 2017).

256. Jones v. State, 79 N.E.3d 911, 913 (Ind. Ct. App. 2017).

257. Id. at 916-17. 

258. Id. at 917. 

259. Id. 



1040 INDIANA LAW REVIEW [Vol. 51:1015

can be waived.”260 

E. Trial Court’s “Curt” Behavior at Sentencing Requires Reversal

In Owens v. State,261 the trial court found a defendant guilty of carrying a
handgun without a license and proceeded to sentencing without allowing the
defendant to make a statement or defense counsel to make a legal argument.262

The court of appeals expressed its dismay with the trial court’s disregard of the
statute that requires asking “the defendant whether the defendant wishes to make
such a statement.”263 Observing the trial court’s approach was “penny wise and
pound foolish,” the court of appeals ordered a new sentencing hearing to rectify
the “denial of due process [that] only leads us back to where defense counsel
wanted us to be during sentencing, but at the expense of our taxpayers.”264 

IX. RESTITUTION

Although restitution issues arose in several appellate cases, the principles
explained in the following three—one from the supreme court and the other two
from the court of appeals—are of particular note. 

A. Restitution Order Affirmed for Damage to Vehicle in Auto Theft Case

In Archer v. State,265 the Indiana Supreme Court decided three issues related
to restitution. First, the court found the defendant did not waive her right to
appeal a restitution order by signing a plea agreement that included a provision
waiving the right to appeal “any sentence imposed by the [trial court].”266 The
agreement left blank the amount of restitution and did not provide “any
mechanism for determining the amount of restitution.”2 6 7 A requirement that the
defendant pay restitution does not make “the amount of the restitution . . . a term
of the agreement.”268 

Next, by pleading guilty to auto theft, the defendant was responsible for the
damage done to the vehicle while it was in her custody and control, namely a
fresh coat of spray paint.269 Because the defendant agreed to pay restitution and
the only damage was the spray painting, she necessarily agreed to pay for the
spray-paint damage.270 

260. Id. at 918 (citing Angleton v. State, 714 N.E.2d 156, 159 (Ind. 1999)). 

261. 69 N.E.3d 531, 532 (Ind. Ct. App. 2017).

262. Id.

263. Id. at 534 (quoting IND. CODE § 35-38-1-5 (2017)). 

264. Id. at 534-35. 

265. 81 N.E.3d 212 (Ind. 2017).

266. Id. at 215-16. 

267. Id. at 216. 

268. Id. (emphasis in original).

269. Id. at 217.

270. Id.



2018] CRIMINAL LAW 1041

Finally, the court found no abuse of discretion in ordering the defendant to
pay $25 per month, which could take years but would not result in her
incarceration as long as she made a good faith effort to pay.271 Distinguishing Bell
v. State,272 the court emphasized that Archer agreed to pay restitution, rather than
being ordered to do so after trial, and evidence showed she “is able to work and
hopes to secure employment in the future,” unlike the disabled defendant in
Bell.273 

B. Restitution “as a Result of the Crime”

The restitution statute authorizes courts to compensate crime victims for a
variety of costs incurred “as a result of the crime.”274 Building on Archer, the
court of appeals in Postiglione v. State275 affirmed a restitution order for medical
bills for a broken leg and ankle against a defendant who had started a fracas in a
bar.276 

The statute and decisional law do not require the injury be directly or solely
“caused” by the defendant; they simply require “the victim’s injury or loss be a
‘result of’ the defendant’s crime.’”277 Thus, although her co-defendants were
more directly involved in inflicting the injuries, their “actions were not a separate,
intervening action which might have removed [her] responsibility for
restitution.”278 

C. Value of Property at Time of Loss

Finally, in Baker v. State,279 the court of appeals reiterated that the appropriate
replacement cost in ordering restitution is “the value of the destroyed item at the
time of the loss.”280 There, the defendant pleaded guilty to drunk driving, which
had caused an accident that totaled another vehicle. The other driver was in her
father's 1996 Buick Park Avenue, for which insurance paid her father $1,718.81;
as a replacement for her father’s car, the woman purchased a 2002 Buick Century
for $3,800.00.281 The trial court ordered the defendant to pay $2,082.00, the
difference in value as restitution to cover her out-of-pocket expense.282

The court of appeals reversed, holding the other driver was entitled to “the

271. Id. at 218.

272. 59 N.E.3d 959 (Ind. 2016).

273. Archer, 81 N.E.3d at 218.

274. IND. CODE § 35-50-5-3(a) (2017).

275. 84 N.E.3d 659 (Ind. Ct. App. 2017), trans. denied, No. 49A04-1607-CR-1662, 2017 WL

6619006 (Ind. Dec. 17, 2017).

276. Id. at 664.

277. Id. at 665. 

278. Id. at 666 (quoting the trial court’s order). 

279. 70 N.E.3d 388, 391 (Ind. Ct. App.), trans. denied, 86 N.E.3d 171 (Ind. 2017).

280. Id.

281. Id. at 390.

282. Id.



1042 INDIANA LAW REVIEW [Vol. 51:1015

value of the Park Avenue at the time of the accident.”283 The State's only evidence
of its value was the $1,718.81 amount paid by insurance.284 Although this amount
“may or may not represent the actual replacement cost of the destroyed item,” the
defendant was “not entitled to a credit for the victim’s insurance payment.”285 The
case was remanded for the trial court to “enter a restitution order for the value of
the Park Avenue prior to the accident.”286

X. CHALLENGES TO PROBATION CONDITIONS AND PROBATION REVOCATION OR
COMMUNITY CORRECTIONS

Defendants frequently challenge probation conditions imposed by trial court
or various aspects of the trial court’s revocation of probation or community
corrections. Four are included below.

A. Trial Court, Not Probation, Must Impose Fees

A trial court has discretion to impose certain probation fees against a
defendant.287 If the probation department later wants to change these fees imposed
by the trial court, it must petition the trial court and demonstrate a change in the
financial ability of the probationer.288 

In Burnett v. State,289 the court of appeals reiterated that trial courts, not the
probation department, have the discretion to impose probation fees.290 There, the
trial court stated the defendant had “various probation fees that are required” and
its sentencing order and order of probation stated that the defendant had to follow
“all standard conditions and fees of probation.”291 Because the trial court did not
impose any probation fees, “it was erroneous to accept the imposition of these
fees without a petition from the probation department and a showing that
Burnett’s financial situation has changed since the sentencing hearing.”292 

B. Conditions Must be Related to Treatment and Public Safety

After a defendant in Waters v. State293 was convicted of multiple counts
related to the sexual assault of an adult woman, the trial court imposed four
probation conditions explicitly restricting his contact with minors.294 Because

283. Id. at 391.

284. Id. 

285. Id.

286. Id. at 392.

287. IND. CODE § 35-38-2-1(e) (2017).

288. Id. § 35-38-2-1.7(b).

289. 74 N.E.3d 1221 (Ind. Ct. App. 2017).

290. Id. at 1227.

291. Id. 

292. Id. 

293. 65 N.E.3d 613 (Ind. Ct. App. 2016). 

294. Id. at 618-19.



2018] CRIMINAL LAW 1043

nothing in the record showed that Waters was a threat to minors, the court of
appeals held these conditions were not reasonably related to his treatment or to
the protection of the public.295 

Another condition restricted the defendant’s access to the Internet.296 But
“[t]he [I]nternet has become increasingly pervasive in our daily lives,” and the
defendant had no history of illegal Internet use and did not use it as part of his
crime.297 Therefore, the court of appeals held that any Internet-related condition
regarding must be tailored to prevent him from using specific websites or
categories of websites—and may not completely prevent his use of the internet.298

C. Strict Liability Probation Agreement Not Enforceable

A decade ago, the Indiana Supreme Court wrote in Woods v. State299 that “the
very notion that violation of a probationary term will result in revocation no
matter the reason is constitutionally suspect.”300 Although “telling a defendant
that he is on ‘strict compliance’ is a dramatic way of putting him on notice that
he is on a short leash and has been given one final chance to ‘get his act
together,’” the supreme court limited “strict compliance” because “due process
requires that a defendant be given the opportunity to explain why even this final
chance is deserving of further consideration.”301

Building on Woods, during this survey period the court of appeals found error
with another form of strict compliance or zero tolerance arrangement.302 In
Hampton v. State,303 the defendant stipulated that she had violated the conditions
of her probation and agreed to a sanction of 550 days in the DOC, and with that
commitment stayed for six months.304 The agreement provided, if at the time of
the review hearing, she had completed all terms the sentence would be
withdrawn, but if she had not completed all terms and obligations her sentence
would be executed.305 “The parties further agreed that, ‘The Court has no
authority to alter this [A]greement without the consent of the State and
defendant.’”306 The evidence at the review hearing showed the defendant had not
called in to probation as required and failed to make the required payments.307

295. Id. at 619.

296. Id.

297. Id. at 619-20.

298. Id. 

299. 892 N.E.2d 637 (Ind. 2008).

300. Id. at 641.

301. Id. 

302. See Hampton v. State, 71 N.E.3d 1165 (Ind. Ct. App.), trans. denied, 88 N.E.3d 1077

(Ind. 2017).

303. Id. at 1167.

304. Id.

305. Id.

306. Id.

307. Id. at 1168.



1044 INDIANA LAW REVIEW [Vol. 51:1015

“Noting that it lacked the authority to change the Agreement, the trial court
ordered Hampton to serve 550 days in the DOC, less credit time.”308

The court of appeals reversed and remanded to the trial court “for it to
determine the appropriate sanction to impose for Hampton’s violations of its
order.”309 Quoting Woods, the court rejected the analogy between a strict
compliance probation agreement and a plea agreement: “A defendant who enters
a plea agreement knowingly, intelligently, and voluntarily is hardly similarly
situated to a defendant who is advised in essence either agree to strict compliance
or go to jail now for violating probation.”310

D. Lengthy Prison Sentence Excessive for Community Corrections Violation

In Johnson v. State,311 the trial court appropriately found the defendant
violated the term of his community corrections (home detention) placement that
he not leave his apartment when he was sitting outside on a bench.312

Nevertheless, the decision to order him to serve the seven-year sentence in prison
was reversed in light of “the level of Johnson's functioning and his resources, his
previous successful placement on work release, the nature of the violation, and
the severity of the court’s sentence.”3 13 Rather, citing the handful of cases where
the court of appeals had previously found a trial court abused its discretion in
imposing a penalty when revoking probation or community corrections, the court
of appeals remanded to the trial court with instructions to order the remaining
sentence be served on work release.”314

CONCLUSION

With only two months on the Indiana Supreme Court bench for Justice Goff
and less than sixteen for Justice Slaughter when the survey period ended in
September 2017, it is early to attempt to predict trends among the new Indiana
Supreme Court. A state supreme court has considerable influence not only
through those opinions it agrees to hear on discretionary review but also the more
than ninety percent of cases it lets stand.315 Courts can issue broad, far-reaching
opinions or decide issues narrowly. As recounted above, the justices issued
reasonably broad and far-reaching opinions on issues such as video evidence in
Love and restitution in Archer this year and Bell last year. Although the Shinnock
case on corpus delicti involved an unusual set of facts, the opinion was written

308. Id.

309. Id. at 1174.

310. Id. (quoting Woods v. State, 892 N.E.2d 637, 640 n.2 (Ind. 2008)).

311. 62 N.E.3d 1224 (Ind. Ct. App. 2016).

312. Id. at 1231.

313. Id.

314. Id. at 1232.

315. See INDIANA SUPREME COURT ANNUAL REPORT 14 (2016-2017), available at

http://www.in.gov/judiciary/supreme/files/1617report.pdf [perma.cc/N6GB-ACC4] (noting that of

484 criminal cases before the court, thirty-four opinions (seven percent) were issued).



2018] CRIMINAL LAW 1045

in a manner that applies more broadly when the issue arises in future cases.316

Many opinions, however, resolved issues quite narrowly, and the court has
increasingly turned to per curiam opinions that provide little
reasoning—essentially declaring that the court of appeals was correct or incorrect
with little explanation of reasons that may be applied in future cases. 

Nearly a quarter of the criminal appellate docket was decided in the court’s
eight per curiam opinions. Five of these were discussed above, specifically, three
sentencing cases (Whiteside, Wampler, and McGuire) and the Miller case on
remedies for erroneous legal statements at bench trials.317 In the fifth and most
narrow, three justices granted transfer simply to vacate part of a court of appeals’
opinion that had characterized an argument as “specious and not supported by
cogent reasoning.”318 Although not shaping a major legal doctrine for decades,
that opinion surely sent a clear message to the court of appeals about the manner
and tone in which to address arguments of counsel.

The three additional per curiam opinions not discussed above were similarly
narrow. First, in Middleton v. State,319 the court granted transfer to reiterate the
correct standard in reviewing a claim of ineffective assistance of counsel.
Demonstrating prejudice from counsel’s deficient performance requires a
petitioner to show “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceedings would have been different.”320 Next, in
McNeal v. State,321 the court “vacate[d] a portion of the court of appeals’ opinion
discussing the community caretaking exception to the Fourth Amendment’s
warrant requirement.”322 This led to the same result because the defendant’s
“encounter with police was justified by reasonable suspicion of public
intoxication.”323 Finally, a per curiam rehearing opinion addressed a claim of
factual inaccuracy in an earlier per curiam opinion on sentencing. The court
acknowledged the defendant in a child solicitation case was “correct that the
record reflects he solicited his niece to sit on his lap and she declined, not that he
‘had her sit on his lap,’” as the opinion stated.324 Nevertheless, the court otherwise
affirmed the original opinion that upheld the trial court’s sentence because the
“factual difference [did] not alter our original decision.”325 Other examples in

316. Admittedly, some of the far-reaching opinions in criminal cases involve evidentiary or

Indiana constitutional law issues that are discussed elsewhere in this survey issue.

317. See generally Whiteside v. State, 76 N.E.3d 844 (Ind. 2017); Wampler v. State, 67

N.E.3d 633 (Ind. 2017); McGuire v. State, 77 N.E.3d 1198 (Ind. 2017); Miller v. State, 77 N.E.3d

1196 (Ind. 2017).

318. See supra notes 147-49 and accompanying text. 

319. 72 N.E.3d 891 (Ind. 2017).

320. Id. at 891 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)) (emphasis in

Middleton). 

321. 76 N.E.3d 136 (Ind. 2017).

322. Id. at 137.

323. Id.

324. Bess v. State, 65 N.E.3d 593, 594 (Ind. 2016).

325. Id.



1046 INDIANA LAW REVIEW [Vol. 51:1015

recent years include adoption of a well-reasoned majority or dissenting court of
appeals’ opinion.326 

Vacating an unnecessary or problematic part of a court of appeals
opinion—or adopting part or all of an opinion—is easily and appropriately done
in a short per curiam opinion. Use of per curiam opinions in sentencing cases
often signals to litigants and lower courts that something was the wrong answer
without providing much insight on the right answer. Some of the ambiguity is
inherent in the nature of the claim; as the supreme court wrote a decade ago,
“[t]he principal role of appellate review should be to attempt to leaven the
outliers, and identify some guiding principles for trial courts and those charged
with improvement of the sentencing statutes, but not to achieve a perceived
‘correct’ result in each case.”327

In contrast to most per curiam opinions, the Miller opinion addressed a
significant issue of broad applicability, creating new law on an issue of first
impression rather than applying well-settled law to a common scenario. The per
curiam Miller opinion took a position opposite the court of appeals’ thorough,
unanimous opinion.328 But the supreme court’s analysis, after recounting the
State’s contention in a sentence, was limited to a single sentence, without citation
to legal authority.329 

The Indiana Appellate Rules offer criteria for the court of appeals to consider
in deciding whether to issue a published/precedential opinion or a memorandum,
non-citable decision.330 No analogous rule addresses criteria for issuing per
curiam opinions. A treatise on appellate practice suggests a “full opinion” be
issued in any one of the following circumstances:

(a) In deciding the appeal the court enunciates a new rule of law or
modifies an existing rule.
(b) In deciding the appeal the court resolves a conflict or apparent
conflict of authority between its own panels or between subordinate
courts.
(c) The court is not unanimous in the disposition.
(d) The decision is of substantial public interest.331

326. See, e.g., McKeen v. Turner, 71 N.E.3d 833, 834 (Ind. 2017) (“grant[ing] transfer and

adopt[ing] and incorporat[ing] by reference the Court of Appeals opinion”); Weaver v. State, 56

N.E.3d 25, 26 (Ind. 2016) (agreeing with the dissenting opinion that the evidence was sufficient to

support a conviction for refusal to identify). 

327. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

328. Miller v. State, 72 N.E.3d 502 (Ind. Ct. App.), aff’d in part, vacated in part, Miller v.

State, 77 N.E.3d 1196 (Ind. 2017).

329. Miller, 77 N.E.3d at 1197 (“We agree the correct remedy in these circumstances is a

remand for reconsideration by the trial court.”).

330. IND. APP. R. 65(A). 

331. DANIEL J. MEADOR ET AL., APPELLATE COURTS: STRUCTURES, FUNCTIONS, PROCESSES,

AND PERSONNEL 508 (1994) (quoting CARRINGTON, MEADOR, & ROSENBERG, JUSTICE ON APPEAL

31-35 (1976)). 



2018] CRIMINAL LAW 1047

Most of the per curiam opinions do not fall within any of the four categories.
Time will tell if that trend continues or these abbreviated opinions are used to
decide issues of broader reach, like the Miller opinion, which arguably fell within
categories a, c, and d.