Indiana Law Review


Recent Developments in Indiana
Criminal Law and Procedure

Joel M. Schumm*

This Article will survey developments in the area of criminal law and

procedure that were enacted by the 2000 Indiana General Assembly and
addressed by the Indiana appellate courts since the last Survey.

I. Legislative Enactments

A. BloodAlcohol Content

On July 7, 1999, the court of appeals issued its opinion in Sales v. State* in
which it held that Indiana Code section 9-30-5- 1(a)(2), as amended in 1997, was
"defective on its face" and would not support a conviction in many instances.2

That statute provided: "A person who operates a vehicle with at least ten-
hundredths percent (0.10%) of alcohol by weight in grams in: ... (2) two
hundred ten (210) liters of the person's breath; commits a Class C
misdemeanor."

3 The court of appeals observed:

As written, to be convicted under the breath-alcohol provision a person
must have . 1 0% by weight ofalcohol in grams in 2 10 liters ofhis breath.
To express the weight ofalcohol as a percentage of2 1 liters of breath,
we would divide the weight in grams ofalcohol by 2 1 0, then multiply by
100 to obtain a "percentage."

4

Applying this formula to Sales' breathalyzer reading of". 1 4 grams ofalcohol per

210 liters of breath" yielded .0667%, which is less than the .10% necessary for
a conviction under the statute.

3
Thus, the court of appeals affirmed the trial

court's sua sponte dismissal ofthat count.
6
In so doing, its ruling also cast grave

doubt over the ability ofthe State to secure convictions (and the validity ofthose

that had been secured since 1997) in thousands of cases under this statute.

In a special session in November 1999, the General Assembly laid at least
some ofthese concerns to rest when it amended the statute to provide "[a] person
who operates a vehicle with an alcohol concentration equivalent to at least ten-
hundredths (0.10) gram of alcohol per: . . . two hundred ten (210) liters of the
person's breath; commits a Class C misdemeanor."7 Although the amendment

* Law Clerk to the Honorable Paul D. Mathias ofthe Court of Appeals of Indiana; Law
Clerk to the Honorable Theodore R. Boehm of the Supreme Court of Indiana, 1998-2000. J.D.,
1998, Indiana University School of Law—Indianapolis. Any views expressed in this article are
solely those of the author.

1. 714N.E.2d 1121 (Ind. Ct. App. 1999), rev tf, 723 N.E.2d 416 (Ind. 2000).

2. Wat 1129.
3. Wat 1126.
4. Wat 1128.
5. Id

6. See id. at 1129.

7. Ind. Code § 9-30-5-1 (Supp. 2000).



646 INDIANA LAW REVIEW [Vol. 34:645

was effective upon passage, it did not—indeed, it could not—do anything about
convictions and pending cases that occurred between the 1997 amendment and
the 1999 amendment, which continued to be controlled by the court of appeals'
interpretation of the statute in Sales.

On January 1 8, 2000, the supreme court granted transfer in Sales and on
February 7, it issued its opinion reversing the pertinent part of the court of

appeals' opinion.
8 The supreme court began by noting that the 1997 amendment

created an "inherently ambiguous provision."
9
Nevertheless, the court found the

General Assembly's intent to be clear based on the statute as a whole, the usage
of"percentage" in scientific circles, the regulations for instruments that measure
blood alcohol content, cases on the same subject from other jurisdictions, and
common sense. 10 On the latter point, the court noted that there had been a push
in recent years to lower the legal blood alcohol level to .08, but no one had ever

proposed more than doubling it to .21 as the court of appeals' interpretation of
the statute would have required.

1 1

Accordingly, the court held that prosecutions

of cases that occurred between the 1997 amendment and the 1999 correction
"may proceed upon proofofoperating a vehicle with . 1 grams ofalcohol in 2 1
liters of the person's breath."

12

B. Venue

In October of 1998, the court of appeals in Navaretta v. State™ reversed

convictions for operating a vehicle while intoxicated and other offenses based on

improper venue. In Navaretta, the defendant was driving east on 96th Street on
the northeast side ofIndianapolis. After noticing that Navaretta's taillights were

not functioning properly, a Hamilton County Sheriff Deputy followed him.

Navaretta accelerated his vehicle before crashing into a privacy fence. Navaretta

was charged and tried in Hamilton County, but the evidence at trial showed that
the eastbound lane of96th Street in the area in which Navaretta was driving was
located in Marion County and the westbound lane was in Hamilton County.

Id.

8. See Sales v. State, 723 N.E.2d 416 (Ind. 2000).

9. Id. at 4 19. The court explained:

The statutory language at face value asks for a calculation ofthe "percent' of a number

of grams (a unit of weight) found in a number of liters (a unit of volume). It is, of

course, sensible to speak ofthe number ofgrams of alcohol found in a given volume of

blood or breath. It is not meaningful to speak of a number of grams as a "percent" of

a number of liters, at least as "percent" would be understood by one accustomed to

dealing with numbers. The two are not qualitatively the same thing and neither is a

portion of the other's whole.

10. See id. at 420-21.

11. See id. at 421.

12. Id. at 417.

13. 699 N.E.2d 1207 (Ind. Ct. App. 1998), rev'd, 726 N.E.2d 787 (Ind. 2000).



200 1 ] CRIMINAL LAW 647

Navaretta was convicted, and on appeal raised the venue issue. 14

The State relied on Indiana Code section 35-32-2-1 (h), which provides: "If
an offense is committed at a place which is on or near a common boundary which
is shared by two (2) or more counties and it cannot be readily determined where
the offense was committed, then the trial may be had in any county sharing the
common boundary."15 However, the court of appeals found the statute
inapplicable because it was readily apparent that the offenses were committed in
Marion County, albeit near the county line.

16
Accordingly, it reversed

Navaretta's convictions.
17

In response to Navaretta* the General Assembly added a subsection to the
venue statute in 2000, which provides: "If an offense is committed on a public
highway (as defined in IC 9-25-2-4) that runs on and along a common boundary
shared by two (2) or more counties, the trial may be held in any county sharing
the common boundary.

"

,8
Moreover, as in Sales, the supreme court granted

transfer shortly after the amendment and reversed the court ofappeals* holding,
noting:

The record contains evidence that the southern border of Hamilton
County may extend up to two feet south ofthe centerline of96th Street,
which had one eastbound and one westbound lane at the time, we find
that substantial evidence was presented to establish that it cannot be
readily determined in which county the offense was committed, thus
permitting the defendant's trial to occur in Hamilton County or Marion

County.
19

C. Other Enactments

The General Assembly also passed several other bills that generated little
publicity or controversy. The statute of limitations provision of Title 35 was
amended to explicitly provide that a prosecution for murder may be commenced
at any time regardless of the amount of time that passes between the date a
person allegedly commits the elements of the crime and the date the victim

actually dies.
20 The public indecency statute was amended to increase the

offense from a class A misdemeanor to a class D felony when it is committed in
a public park, in or on school property, or in a property owned or managed by the
department of natural resources and the defendant has a prior, unrelated public

indecency conviction that was entered after June 30, 2000.
21 The battery statute

14. See id. at 1208-09.

15. IND. CODE § 35-32-2-l(h) (1998).

1 6. See Navaretta, 699 N.E.2d at 1 209.

17. See id

18. Ind. Code § 35-32-2-1(0 (Supp. 2000).

19. Navaretta v. State, 726 N.E.2d 787, 789 (Ind. 2000).

20. See Ind. CODE § 35-4l-4-2(c) (Supp. 2000).

21. See id § 35-4 1-4-1 (b)(2)-(4).



648 INDIANA LAW REVIEW [Vol. 34:645

was amended to provide that battery against a firefighter while the firefighter is
in engaged in the execution of his or her official duty is a Class A misdemeanor
and a Class D felony if it results in bodily injury to the firefighter.22

The General Assembly also created a new section criminalizing the knowing
or intentional directing of"light amplified by the stimulated emission ofradiation
that is visible to the human eye or any other electromagnetic radiation from a
laser pointer at a public safety officer."

23 The offense is a Class B
misdemeanor.

24

Finally, the code was amended to allow law enforcement officers who have
probable cause to believe a person has committed domestic battery to make a
warrantless arrest based on an affidavit from an individual with "direct
knowledge of the incident."

25
This is an exception to the general requirement

that allows a warrantless arrest only when there is probable cause to believe a
felony was committed or when a misdemeanor is committed in the officer's
presence.

II. Case Developments

A. Confessions

Just three years ago, the Indiana Supreme Court in Smith v. State
16

acknowledged that several of its opinions had applied the wrong standard of
review in cases challenging confessions under the United States Constitution.

27

In Smith, the court noted that United States Supreme Court precedent dating back
to 1972

28
requires that the State prove the voluntariness ofa confession only by

a preponderance of evidence, not beyond a reasonable doubt as many Indiana
cases, purportedly relying on the federal constitution, had required for decades.

29

The Smith opinion cited Professor's Kerr's treatise on Criminal Procedure,30

which provides a detailed and somewhat critical analysis of the court's
inconsistencies on this issue. As Professor Kerr explains, the "beyond a
reasonable doubt" standard was initially adopted under "questionable"

31

circumstances in the 1973 opinion ofBurton v. State?
2
in which the court stated:

The state, according to Miranda, has a "heavy burden ... to demonstrate
that the defendant knowingly and intelligently waived his privilege

22. See id. §§ 35-42-2- 1(a)(1)(D), 35-42-2- l(a)(2)(K).

23. See id. § 35-47-4.5-4.

24. See id.

25. A/. §35-33-l-l(a)(5).

26. 689N.E.2d 1238 (Ind. 1997).

27. See id. atll46n.ll.

28. See Lego v. Twomey, 404 U.S. 477, 488-89 (1972).

29. SeeSmi7/i,689N.E.2datl246n.ll.

30. 16 William A. Kerr, Indiana Practice § 7.2g (1991 & Supp. 1997).
31. Id. §7.2g,at554.

32. 292 N.E.2d 790 (Ind. 1973).



200 1
]

CRIMINAL LAW 649

against self incrimination." We have adopted this standard in past
decisions. The issue, therefore, before this Court, is whether the state
met its "heavy burden", i.e., proved beyond a reasonable doubt that the
confession was voluntarily given.

33

As Professor Kerr explained,

The court in this briefparagraph adopted the reasonable doubt standard
without any citation ofauthority or any discussion whatever. In fact, the

last few words of the paragraph appear to be included in the opinion
almost as an after-thought and as a statement concerning a definition that

appeared to be self-evident to the author ofthe opinion.
34

In Smith, however, the court appeared to resolve the issue, overruling several

cases, including Burton, which had instituted the "beyond a reasonable doubt"

standard under the federal constitution.
33

In the year after Smith, the supreme court reiterated its holding in three cases.

First, in Haak y. State?
6
the court stated "[w]hen a defendant challenges the

voluntariness ofa confession underthe United States Constitution, the State must

prove by a preponderance of the evidence that the confession was voluntarily
given."

37
Next, in Sauerheber v. State?* the court noted, "[t]he State must prove

the voluntariness of a waiver of Miranda rights and the voluntariness of a

confession by a preponderance ofthe evidence."
39

Finally, in White v. State,* the

court stated "[i]f a defendant challenges the admissibility of his confession on

voluntariness grounds, the State must prove by a preponderance ofthe evidence

that the confession was voluntarily given."
41

The court explained in a footnote
that "because defendant did not clearly challenge the admissibility of his

confessions under the Indiana Constitution, we will assume that the claim is
raised only under the United States Constitution and will analyze it as such."

42

Less than five months after the court decided White, the supreme court issued

Berry v. State,** in which it stated "[t]he State bears the burden of proving

beyond a reasonable doubt that the defendant voluntarily and intelligently waived

his rights, and that the defendant's confession was voluntarily given."
44

There

was no mention of the Indiana Constitution or a retreat from the standard

33. Id. at 797-98 (internal citations omitted)

34. KERR, supra note 30, § 7.2g, at 555.

35. See Smith. 689 N.E.2d at 1247.

36. 695N.E.2d944(Ind. 1998).

37. Id. at 947-48.

38. 698 N.E.2d 796 (Ind. 1998).

39. Id. at 803.

40. 699N.E.2d630(Ind. 1998).

41. Id. at 633.

42. Id. at633n.2.

43. 703N.E.2dl54(!nd. 1998).

44. Id. at 157.



650 INDIANA LAW REVIEW [Vol. 34:645

announced in Smith and followed in Haak, Sauerheber, and White. Rather, the
court merely cited Owens v. State*5 a 1981 case that had not been overruled in
Smith.

A year and a half later, the court, citing Berry and again without mention of
Smith or the Indiana Constitution, noted in Schmitt v. State* that "[t]he State

bears the burden of proving beyond a reasonable doubt that the defendant

voluntarily and intelligently waived his rights, and that the defendant's

confession was voluntarily given."
47

Three weeks later, the court reiterated this
standard in Carter v. State™ in which it noted, without citation to any authority,

that "[t]he trial court required the State to prove beyond a reasonable doubt that
the Defendant voluntarily and intelligently waived his constitutional rights and
that his confession was voluntarily given before his statement would be admitted
into evidence."

49

Not until Luckhart v. State50 and Jackson v. State 51 both authored by Justice
Rucker and issued on October 5, 2000, did the court provide any type of
explanation as to the correct standard. Both opinions cite Schmitt and Carter and

include an identically worded footnote that states:

We note that the federal constitution requires the State to prove only by
a preponderance of the evidence that a defendant's confession was
voluntarily given. However, in Indiana we require the State to prove the
voluntariness ofa confession beyond a reasonable doubt, and trial courts

are bound to apply this standard when evaluating such claims."32

Based on Luckhart and Jackson, it appears that the issue is now settled.
Nevertheless, one is left to wonder on what basis the court has retreated to the
"beyond a reasonable" doubt standard. None of the opinions that rely on the
"beyond a reasonable doubt" standard mention any provision of the Indiana

Constitution, let alone engage in the detailed, exhaustive historical analysis that

usually accompanies opinions in which the court holds that the Indiana

Constitution offers greater protection than does an analogous provision of the

federal constitution.
53

Thus, although the court never says so, it appears to have

adopted a higher standard simply as a rule of criminal procedure.

The bottom line, regardless of whether or not one agrees with the court's
recent opinions, is that the issue appears to be resolved. When a defendant

45. 427 N.E.2d 880 (Ind. 1981).

46. 730 N.E.2d 147 (Ind. 2000).

47. Id. at 148.

48. 730 N.E.2d 1 55 (Ind. 2000).

49. Mat 156.
50. 736 N.E.2d 227 (Ind. 2000).

51. 735 N.E.2d 1 146 (Ind. 2000).

52. Luckhart, 736N.E.2d at 229 n.l (internal citations omitted); Jackson, 735N.E.2dat 11 53

n.4 (internal citations omitted).

53. See, e.g., Richardson v. State, 717 N.E.2d 32, 38-50 (Ind. 1999) (tracing the history of

the double jeopardy clause of the Indiana Constitution).



200 1
]

CRIMINAL LAW 65

1

challenges the voluntariness of his confession, the State must prove the

voluntariness "beyond a reasonable doubt." Although trial courts are bound to
apply this standard, it probably makes little difference in the typical confession
case in which the defendant alleges various sorts ofpolice misconduct but police

officers testify otherwise. Such cases require credibility assessments by the trial

court, which, regardless ofthe standard applied, means that most defendants will
continue to lose.

Nevertheless, the court's recent opinions are a potential trap for litigants and

even judges who have not thoroughly read and digested the conflicting cases.
Indeed, if one were to Shepardize or KeyCite Smith, it is good law, as are the

cases following it. Moreover, Shepardizing or KeyCiting the cases overruled in

Smith suggests they are not good law, when in fact they are. Because it does not
appear that the court will offer any more of an explanation, overrule, or "un-
overrule" any other cases, one can hope that continued application of the what
the court has determined to be the proper standard will eventually lead trial

courts and litigants to understand and apply the beyond a reasonable doubt

standard.

B. Jury Deliberations and Return of Verdict

In Dickenson v. State?* the court of appeals addressed a claim that a juror

lied during voir djre. Dickenson was charged with the attempted murder of
Jessie Stinnett. During voir dire the trial court apprised the prospective jurors of

the names ofthe potential witnesses in the case, which included Stinnett's wife
Karen. One prospective juror acknowledged that she had been a childhood
neighbor of Dickenson's and knew a few of the potential witnesses, but
maintained that her ability to weigh the testimony of those witnesses would not
be affected. In addition, the juror did not respond when the trial court asked if
any of the prospective jurors had prior knowledge about the facts of the case.

The juror was selected, and Dickenson was convicted.
55

After trial, Dickenson filed a motion for an evidentiary hearing to determine

juror misconduct, alleging that the juror had lied about her relationship with

Karen and her pretrial knowledge of the case. Dickenson also filed affidavits

from persons who had seen the juror and Karen together or had overheard the
two discussing the incident before trial.

56

At the evidentiary hearing, the juror testified that she knew both Dickenson
and Karen but had only a casual relationship with either of them.

57 However,

other witnesses, including Dickenson's two brothers, testified that they had seen

the juror and Karen together following the incident but before trial.
58 One

witness testified that she had seen the juror and Karen together at a bar "almost

54. 732 N.E.2d 238 (Ind. Ct. App. 2000).

55. See id. at 240.

56. See id.

57. See id. at 241.

58. See id. at 242.



652 INDIANA LAW REVIEW [Vol. 34:645

every weekend" and overheard them discussing the incident shortly after it
happened.

59
Other witnesses testified that they had seen the juror and Karen

together at other bars. The trial court questioned the juror about her answers on
voir dire, determined that she did not lie, and denied the motion for a new trial.60

The court of appeals noted that, in order to secure a new trial, a defendant
alleging juror misconduct must present "specific, substantial evidence showing

ajuror was possibly biased" and demonstrate that the misconduct was gross and
probably harmed the defendant.

61
Based on the evidence presented, the court of

appeals concluded that the juror "misrepresented her relationship with Karen
when asked about it on voir dire and at the post-verdict evidentiary hearing . .

.

[and] was not truthful when she failed to affirmatively respond to the court's
inquiry on voir dire as to whether any of the potential witnesses had prior

knowledge of the case."
62

"[B]ecause the evidence reveals that [the juror] had

knowledge ofthe case prior to trial, and was friendly with the victim's wife, who
testified at trial," the court concluded that "the misconduct was gross and
probably harmed the defendant."

63
Accordingly, the court reversed and

remanded for a new trial.64

Judge Vaidik dissented, believing that the case should instead be remanded
for an evidentiary hearing at which the trial court would consider whether the

juror was biased.
65
The trial court's evidentiary hearing was inadequate because

it heard testimony only from the juror, concluded that she was not biased, and
then heard testimony from the defense witnesses as part of an offer of proof.

66

Based on the offer ofprooftestimony and the affidavits filed with the motion, the

majority had concluded that the juror was biased and untruthful, a conclusion
that Judge Vaidik asserted was reached by "reweigh[ing] the evidence and
judg[ing] the credibility ofthe witnesses .... These are functions ofa trial court

not an appellate court."
67

Although this issue is an important one, it is fortunately one that does not

arise often. When it does, the better course would be to hear from all relevant
witnesses and then rule on the issue, making an explicit finding about which ones

are credible and which ones are not.

In Jelks v. State™ the court of appeals addressed the effect of a trial judge

engaging in a colloquy with a dissenting juror during polling. According to

statute,

59. Id.

60. See id. at 240.

61. Seeid.2X2A\.

62. Id. at 242.

63. Id.

64. See id.

65. See id. at 242-43 (Vaidik, J., dissenting).

66. See id.

67. A/ at 243.

68. 720 N.E.2d 1171 (Ind. Ct. App. 1999).



200 1 ] CRIMINAL LAW 653

When the jury has agreed upon a verdict, the verdict must be reduced to
writing and signed by the foreman. When returned into court, the
foreman shall deliver the verdict, and either party may poll the jury. If
ajuror dissents from the verdict, thejury shall be sent out to deliberate.

69

In Jelks
t
after thejury's guilty verdict was read, the trial court polled thejury

at Jelks' request. When asked if that was her verdict, a juror responded that it
was not.70 The trial court then asked the juror a series of questions regarding
whether she believed the State had proven its case, her reasons for voting for

guilty, and whether continued deliberations would be productive.
71

The trial
court then sent the jurors back to the jury room to continue their deliberations.
The jury later returned another guilty verdict.

On appeal Jelks contended that the trial court erred in engaging in a colloquy
with the dissenting juror.

72 The court of appeals agreed and reversed his
conviction, noting that

[tjhe statute clearly provides that the remedy forjuror dissent that arises
during the polling procedure is to return the jury for deliberations, not

engage in an extended colloquy about the elements of the crime, the

State's burden, or the role ofajuror. By doing so, the trial court tainted
further deliberations and placed the defendant in a position of grave

peril.
73

In Baxter v. State™ the supreme court was asked to consider the propriety of
allowing jurors who smoke to separate from those who do not smoke during
deliberations. During the alleged "separation," three jurors were allowed to go
outside, where they remained within the sight but not hearing of the court's
bailiff, while the remaining jurors remained inside with the bailiff.

The supreme court reiterated the well-established and strict rule regarding
jury separation during deliberations. "Barring exigent circumstances, in a

criminal trial the jury is to remain together throughout deliberations and until a

verdict is returned."
75

If the jury is allowed to separate, the State is ordinarily

required to "prove beyond a reasonable doubt that the verdict was not affected
by the separation and that the verdict is clearly supported by the evidence."76

The court noted that it had never before addressed the propriety of allowing
jurors who smoke to be in one room while nonsmokers are in another room and
declined to address the issue in this case because it was not preserved by a timely

69. Ind. Code §34-36-1-9 (1998).
70. See Jelks, 720 N.E.2d at 1 1 73-74.

71. See id. at 1173-74.

72. See id at \m.
73. Id.

74. 727 N.E.2d 429 (Ind. 2000).

75. Mat 434.
76. Id.



654 INDIANA LAW REVIEW [Vol. 34:645

objection.
77

Thus, the propriety ofallowing smoking and nonsmoking jurors to
be separated in any way during deliberations remains an open question in
Indiana.

In light ofBaxter, some trial judges may forbid any separation, thus requiring
jurors who smoke to go for hours without a cigarette. This could potentially lead
jurors who smoke to expedite their deliberations. On the other hand, trial courts
could also require that all jurors go outside to stand near the few who happen to
smoke. Depending on weather conditions, however, this could create some ill
will among jurors.

The issue is perhaps best resolved by an agreement between the parties
allowing a limited separation supervised by the bailiff during which the
nonsmokingjurors would remain in thejury room under strict instructions not to
discuss the case. Although existing law clearly forbids a separation, a

defendant's explicit acquiescence to it would foreclose the possibility ofraising
the issue as error on appeal.

C. Reasonable Doubt Instruction

Over four years ago, in Winegeart v. State™ a divided Indiana Supreme
Court, acting under its "inherent and constitutional supervisory

responsibilities,"
79

endorsed the Federal Judicial Center's reasonable doubt

instruction for use by Indiana trial courts. That instruction provides:

The government has the burden of proving the defendant guilty beyond
a reasonable doubt. Some of you may have served as jurors in civil
cases, where you were told that it is only necessary to prove that a fact

is more likely true than not true. In criminal cases, the government's
proofmust be more powerful than that. It must be beyond a reasonable

doubt. Proofbeyond a reasonable doubt is proofthat leaves you firmly

convinced of the defendant's guilt. There are very few things in this

world that we know with absolute certainty, and in criminal cases the
law does not require proof that overcomes every possible doubt. If,

based on your consideration of the evidence, you are firmly convinced

that the defendant is guilty of the crime charged, you [should] find

[him/her] guilty. Ifon the other hand, you think there is a real possibility

that [he/she] is not guilty, you [should] give [him/her] the benefit ofthe

doubt and find [him/her] not guilty.
80

Justice Dickson, joined by Justices Sullivan and Selby, made it clear that the

77. See id. Baxter did not raise the issue until he filed a motion to correct error after trial.

The court held that this was too late. See id. In a case in which the defendant does not learn ofthe

separation until after trial, however, it would appear that the immediate filing of a motion raising

the error would be sufficient to preserve the issue for appeal.

78. 665 N.E.2d 893 (Ind. 1996).

79. Id. at 902 (citing Ind. Const, art. VII, § 4).

80. Id (brackets in original).



2001] CRIMINAL LAW 655

court was simply recommending, and not mandating, use of this instruction.
Justice DeBruler, joined by Chief Justice Shepard, wrote a concurring

opinion in which he stated:

I do not share the majority's perception of deep problems within this
area, nor the belief that the [Federal Judicial Center's jury instructions]

are the appropriate remedy. Specifically, I do not believe that "firmly
convinced" equates to "beyond a reasonable doubt." Both objectively

and subjectively, "firmly convinced" seems more similar to "clear and
convincing" than to "beyond a reasonable doubt." I find the [current]

Indiana Pattern Jury Instruction . . . more than adequate.81

The issue was not revisited for two years. In Young v. State*2 the defendant
challenged the trial court's refusal of his tendered instruction and the giving of

an instruction that instead used the second paragraph of the Winegeart

instruction. The court rejected the challenge, noting that the "two instructions
are substantively similar" and "trial courts are not required to give instructions

already covered by other instructions."
83

The court further explained that the words "imagination or speculation" and
"absolute certainty" were approved in Winegeart and that "the instruction

sufficiently established] the requisite degree of certainty—it requires the jury
to be 'firmly convinced' of the defendant's guilt based on the evidence."

84

In the two years since Young, several other defendants have brought
challenges to the supreme court based on the Winegeart instruction. Most of
these challenges have been dismissed in relatively short order. For example, in

Williams v. State*
5
the court noted

Williams requested the trial court to give the instruction on the definition

ofreasonable doubt that now appears as Pattern Instruction 1.16. As the
comments to that instruction observe, it was criticized in [Winegeart]
and an alternative, which now appears as Instruction No. 1.15, was
recommended by the majority of this Court. The trial court gave the
reasonable doubt instruction that a majority ofthis Court recommended
in Winegeart. It was not error to do so.

86

Rather than attacking the entire instruction, other defendants have attempted

to parse the instruction, arguing error based on certain sentences or phrases.

These efforts have proved unsuccessful as well. For example, in Ford v. State*1

the defendant challenged the use of the words "real possibility" asserting that

"because the word 'real' is equated with 'very' in 'today's jargon,' the jury

81

.

Id. at 904-05 (DeBruler, J., concurring in result) (internal citations omitted).

82. 696 N.E.2d 386 (Ind. 1998).

83. Id. at 390.

84. Id. (quoting Winegeart, 665 N.E.2d at 902).

85. 714 N.E.2d 644 (Ind. 1999), cert, denied, 528 U.S. 1 170 (2000).

86. Id. at 650 (internal citation omitted).

87. 718 N.E.2d 1 104 (Ind. 1999).



656 INDIANA LAW REVIEW [Vol. 34:645

would have to find a 'significant or substantial doubt' before acquitting the
defendant."

88
Justice Boehrn, writing for a unanimous court and delivering a

grammar lesson of sorts, noted:

"ReaP in this context seems fairly clearly to be the adjective meaning
"actual," not the slang adverb which is a corruption of "really" as in
"real big deal." Whether or not every juror would identify this
grammatical point, we do not believe anyone would conclude that the
term "real possibility" would have the connotation Ford urges. The trial
court did not err in giving this instruction.

89

Other challenges have transcended grammar and focused on alleged
violations of constitutional rights. In Dobbins v. State™ the defendant argued
that the Winegeart instruction impermissibly "shifted the burden of proof to
him.

91 The supreme court rejected this argument, noting simply, "Defendant
recognizes that we approved the trial court's reasonable doubt instruction in
Winegeart. We decline to reconsider the issue here."92

The court's most exhaustive analysis appears in Williams v. State,93 in which
the defendant challenged the final sentence ofthe Winegeart instruction as being
at odds with the presumption of innocence. Specifically, Williams argued that

"the benefit ofthe doubt is extended to all defendants, not only those whom the
jury feels there is a "real possibility' are not guilty."

94 He also contended that the
instruction "tells the jurors if they believe the defendant is actually guilty, they

should not apply the presumption of innocence and the requirement of proof

beyond a reasonable doubt in rendering a verdict."
93

The court rejected these challenges on the basis that (1) the first sentence of
the instruction made clear that the State had the burden ofproving the defendant
guilty beyond a reasonable doubt; (2) the presumption of innocence was
explained by other instructions; and (3) "Williams points to no case from any
jurisdiction that has found it to undermine the presumption of innocence or

otherwise deprive a defendant of his or her liberty without due process oflaw in

violation ofthe Fourteenth Amendment."
96

Nevertheless, in a footnote, the court

explained that "two federal cases have cautioned against the use of the words

'real possibility' in a reasonable doubt instruction"
97
and that the Hawaii Court

of Appeals "has also expressed disapproval of this language, and found an

88. Id at 1105.

89. Id

90. 721 N.E.2d 867 (Ind. 1999).

91. Id at 874.

92. Mat 875.
93. 724 N.E.2d 1093 (Ind. 2000).

94. Id. at 1095.

95. Id

96. Id at 1096.

97. Id at 1096 n.2 (citing United States v. Porter, 821 F.2d 968, 973 (4th Cir. 1987); United

States v. McBride, 786 F.2d 45, 51-52 (2d Cir. 1986)).



2001] CRIMINAL LAW 657

instruction similar to the one in this case to be reversible error based on the
* firmly convinced' language."

98

Since Williams, the supreme court has considered and rejected several other

challenges to the Winegeart instruction." The specific bases ofthese challenges
are not always clear. In Wright v. State™ however, it was clear that the
defendant was challenging the instruction under the state constitution. 101

Specifically, Wright asserted that the trial court's reasonable doubt instructions,

including the Winegeart instruction, violated article I, section 19 ofthe Indiana

Constitution.
102

Because Wright did not object to the instructions at trial, the

supreme court purportedly considered only whether the instructions were
fundamentally erroneous.

103
Nevertheless, the language of the opinion rather

explicitly finds no state constitutional violation.

Instructions 15 and 21 do not violate Article I, section 19. The
instructions inform the jurors that ifthey conclude beyond a reasonable

doubt that the defendant is guilty, they should return a verdict of guilty.

The instructions are hardly offensive to any ofour fundamental precepts
of criminal justice; indeed, we have approved of them in several
previous cases.

104

Thus, based on Wright, the state constitutional issue, at least under article I,

section 19, is now settled and raising it in future cases will prove futile.
Thus, it would appear that the Winegeart instruction is here to stay, as

challenges based on both the federal and state constitution have been raised and

rejected. However, no defendant has yet asked the supreme court simply to

revisit its recommendation in Winegeart and consider either to "unrecommend"
the Federal Judicial Center pattern instruction or to recommend a better
alternative. The potential success ofsuch an argument would appear somewhat
dubious in light of the court's consistent refusal to revisit the issue.

Nevertheless, the composition of the current court is quite different from the

court that decided Winegeart. Although Justices Dickson and Sullivan of the

majority remain, so does Chief Justice Shepard, who opposed the
recommendation from the beginning. Furthermore, Justices Boehm and Rucker

98. Id. (citing State v. Perez, 976 P.2d 427, 441-42 (Haw. Ct. App. 1998), cert, granted on

other grounds by 976 P.2d 379 (Haw. 1999)).

99. See Maul v. State, 731 N.E.2d 438, 441 (Ind. 2000); Wright v. State, 730 N.E.2d 713,

716 (Ind. 2000); McGregor v. State, 725 N.E.2d 840, 842 (Ind. 2000); Warren v. State, 725 N.E.2d

828, 832 (Ind. 2000); Turnley v. State, 725 N.E.2d 87, 89 (Ind. 2000).

100. 730N.E.2dat713.

101. Id. at 7 1 6 . In an earlier case, Childers v. State, the court found that any claim under the

state constitution was forfeited on appeal because it was not raised in the trial court. 719 N.E.2d

1227, 1232 (Ind. 1999).

1 02. See Wright, 730 N.E.2d at 7 1 6.

103. See id.

104. Id (citing Barber v. State, 715 N.E.2d 848, 851 (Ind. 1999); Winegeart v. State, 665

N.E.2d 893, 895 (Ind. 1996)).



658 INDIANA LAW REVIEW [Vol. 34:645

have joined the court since Winegeart.

Although the loudest grumblings about the Winegeart instruction come from
the criminal defense bar, dissatisfaction also appears to be present among some
trial judges who continue to give the pre-Winegeart pattern instruction.
Moreover, the committee of the Indiana Judges Association responsible for the
Pattern Instructions has proposed a new reasonable doubt instruction to replace
the one recommended in Winegeart. The proposed instruction reads:

The burden is upon the State to prove beyond a reasonable doubt
that the defendant is guilty of the crime(s) charged. It is a strict and

heavy burden. The evidence must overcome any reasonable doubt
concerning the defendant's guilt. But it does not mean that a defendant's
guilt must be proved beyond all possible doubt.

A reasonable doubt is a fair, actual and logical doubt based upon
reason and common sense. A reasonable doubt may arise either from the
evidence or from a lack ofevidence. Reasonable doubt exists when you
are not firmly convinced ofthe defendant's guilt, after you have weighed
and considered all the evidence.

A defendant must not be convicted on suspicion or speculation. It
is not enough for the State to show that the defendant is probably guilty.
On the other hand, there are very few things in this world that we know
with absolute certainty. The State does not have to overcome every
possible doubt.

The State must prove each element ofthe crime(s) by evidence that
firmly convinces each ofyou and leaves no reasonable doubt. The proof
must be so convincing that you can rely and act upon it in this matter of
the highest importance.

If you find that there is a reasonable doubt that the defendant is
guilty of the crime(s), you must give the defendant the benefit of that
doubt and find the defendant not guilty of the crime under

consideration.
105

Although this proposed instruction is somewhat lengthy, it does not suffer
from some ofthe alleged defects noted above. It eliminates the "real possibility"
language and adds considerable language explaining the gravity of the State's

burden. However, the proposed pattern instruction maintains the "firmly

convinced" language, which was the source of concern in the Winegeart

concurrence written by Justice DeBruler.
106

Nevertheless, the instruction appears

to be a palatable alternative to the Winegeart instruction. If ultimately adopted,

it is likely that many defendants will tender this instruction and many trial judges
will be inclined to move away from the Winegeart recommendation based on the
new instruction's status as a pattern instruction.

1 05. Proposed Criminal Instruction Amendments, RES GESTAE, June 2000, at 2

1

106. See Winegeart, 665 N.E.2d at 904 (DeBruler, J., concurring in result).



200 1 ] CRIMINAL LAW 659

D. Material Variance

In Allen v. State,
m

the supreme court addressed a claim ofmaterial variance

in a manner that raises several questions that will likely resurface in future cases.
"A variance is an essential difference between the pleading and the proof." 108

Not all variances are material or fatal.
109

In determining whether a variance is

material, courts consider:

(1) was the defendant misled by the variance in the evidence from the

allegations and specifications in the charge in the preparation and

maintenance of his defense, and was he harmed or prejudiced thereby;

(2) will the defendant be protected in [a] future criminal proceeding

covering the same event, facts, and evidence against doublejeopardy?
1 10

In Allen, the defendant was charged with several counts including criminal

deviate conduct, which is defined by statute as "an act involving: ( 1 ) a sex organ

ofone person and the mouth or anus ofanother person; or (2) the penetration of

the sex organ or anus ofa person by an object."
1 ' l Count IV alleged that the act

involved Allen's sex organ and the victim's anus.
112 The State's physician

testified at trial that the "injury [was] an injury of forcible sexual assault caused

by a forcible penetration into the anus [by] a blunt object."
113

There was also
testimony that the injury was "sexual in nature" and that the profuse bleeding
could have washed away any sperm. 114 Although sperm was found on the
victim's shorts, none was found in her anus.

1 15 The State did not elicit any direct

testimony that Allen's sex organ was the cause ofthe injury.
116

On appeal Allen argued that a material variance existed because he was
charged with criminal deviate conduct involving his sex organ while the evidence

at trial indicated that the act was committed by a blunt object.
117 The State

responded that the physician's testimony of penetration by a "blunt object" and

the presence of sperm on the victim's snorts was evidence from which the jury
could infer that the defendant committed the offense with his sex organ.

118

The supreme court noted that the statute defines the offense alternatively as
penetration by a "sex organ" or "object," and that the State charged the former.

1 19

107. 720 N.E.2d 707 (Ind. 1999).

108. Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997).

109. See id

110. Id

111. Ind. Code §35-41-1-9 (1998).

112. Allen, 720N.E.2d. at 714.

113. Mat 713.
114. Id

115. Id

116. See id.

117. Seeidatlil.

118. Mat 714.
119. Id



660 INDIANA LAW REVIEW [Vol. 34:645

Although the State could have elicited testimony that the penetration was by a
sex organ, it did not. The court reversed the conviction and remanded that count
for a new trial, noting that the conviction made a "fifty-year difference" in the
defendant's sentence and thus "the State should provide evidence that plainly
matches the charge."

120

Allen was a 3-2 decision, written by ChiefJustice Shepard who was joined
by Justices Sullivan and Rucker. Justice Dickson dissented, noting that "the
State did not assert anal penetration by any 'blunt object' other than the
defendant's 'sex organ.' The defendant was not charged with one criminal act
and confronted at trial with evidence of a different act. He was not misled." ,2,

Justice Boehm also dissented. He noted:

The jury was properly instructed on the elements of criminal deviate
conduct and also instructed to rely on the common sense that it had
gained from day-to-day living. It heard evidence that semen was found
in the victim's shorts. In my view, this was sufficient to support the
inference that a penis was the blunt object. 122

The majority's opinion in Allen suggests a rather strict application of the
material variance doctrine. It requires the State to prove its case by "evidence

that plainly matches the charge."
123

This appears to be a higher standard than the

well-established one ofmerely determining whether the defendant was misled by
the variance in the preparation ofhis defense. Such a strict rule would likely lead
to greater success by defendants raising the issue on appeal. However, the court
appears to limit its holding to cases involving lengthy sentences. Thus, a

defendant appealing a variance in a misdemeanor or D felony case may not
achieve the same success as did the defendant in Allen, who was challenging an
A felony count on which he received a fifty year sentence.

Allen also raises additional questions about waiver and remedy, both areas

that will likely need to be addressed in future cases. A footnote in Allen states
that the court addressed the issue "on the merits, as the State has not claimed that

Allen waived it."
124 No further explanation is provided. Errors are waived, or

forfeited, in a number of ways, and in the context of material variance there is
authority requiring that the issue "be raised by an objection specifically pointed

out to the trial court at the time it arises."
125

Thus, it would appear that Allen did

not object when the State elicited testimony about penetration with a blunt
object. Indeed, had Allen objected when the State's physician testified about
penetration by a blunt object, the State surely would have asked the witness ifthe

blunt object could have been Allen's sex organ, which would have resolved the

issue and left nothing for Allen to appeal. Thus, ifthe appellate courts continue

120. Id.

121. Id. at 716 (Dickson, J., concurring in part and dissenting in part).

122. Id. (Boehm, J., concurring in part and dissenting in part).

123. Mat 714.
124. Id. at713n.4.

125. Madison v. State, 130 N.E.2d 35, 46 (Ind. 1955) (Arterburn, J., concurring).



200 1 ] CRIMINAL LAW 66

1

not to apply waiver when waiver is not raised by the State on appeal, defendants
have a powerful incentive not to object at trial.

126

Finally, the supreme court in Allen "reverse[d] Allen's conviction on Count
IV and remand[ed] that count for a new trial." 127 Allen did not petition for
rehearing, and thus one might infer that he believed retrial, rather than acquittal,

to be the proper remedy. Indeed, other supreme court cases that have found a
material variance have similarly stated that the remedy is a new trial. 128

However, the court of appeals has routinely ordered discharge, acquittal, or
reduction to a lesser offense upon a finding ofmaterial variance. 129 Interestingly
enough, a number of these conflicting opinions are cited in Allen with the
parenthetical "all reversing convictions on the basis ofmaterial variance" but no
explanation is offered for the disparate treatment.

130

In simple challenges to the sufficiency of the evidence to support a

conviction, it is clear that a defendant cannot be retried, i.e., the State does not

get a second chance to prove what it failed to prove the first time.
131

In material

variance cases, however, the State has usually proved all the material elements

ofa crime, but itjust happens to be a different crime than the one charged. Thus,

the issue remains whether the State should get a second bite of the apple. The
issue will likely be raised in a future case, and the court of appeals or supreme

court, with the benefit of far more analysis than is available here, will be called
upon to resolve the inconsistencies.

E. Double Enhancements

In Ross v. State,*
32
the supreme court granted transfer to address the propriety

of double enhancements in a handgun case. In that case, the defendant was

1 26. It is not uncommon for the supreme court to find issues waived, despite the failure ofthe

State to assert waiver. See, e.g., Dye v. State, 717N.E.2d 5, 13 & n.6 (Ind. 1999), cert, denied, 121
S. Ct. 379 (2000); Kindred v. State, 540 N.E.2d 1161,1 169 (Ind. 1989).

127. >l//en,720N.E.2dat714.

1 28. See, e.g. , Kirk v. State, 235 N.E.2d 684 (Ind. 1 968); Ferrell v. State, 2 1 9 N.E.2d 804 (Ind.

1966); Tullis v. State, 103 N.E.2d 353 (Ind. 1952);

129. See, e.g., Miller v. State, 616 N.E.2d 750, 757 (Ind. Ct. App. 1993) (remanding "to the

trial court with instructions to sentence [the defendant] for the lesser included offense, Criminal

Confinement as a class D felony"); Waye v. State, 390 N.E.2d 700, 702 (Ind. Ct. App. 1979)
(finding that "there was a fatal variance between the information and the proof at trial and the trial

court erred in overruling Wave's motion for judgment on the evidence."); Wilson v. State, 330

N.E.2d 356, 362 (Ind. Ct. App. 1975) (remanding "with directions that an acquittal be entered as

to Count I and that appellant Wilson be discharged as to that count only"); Hochman v. State, 300

N.E.2d 373, 375 (Ind. Ct. App. 1973) (reversingjudgment and ordering defendant discharged); but

see Bailey v. State, 3 14 N.E.2d 755, 758 (Ind. Ct. App. 1974) (reversing and remanding case to the

trial court).

130. /4//e*,720N.E.2dat714n.5.

131. See, e.g., Vest v. State, 621 N.E.2d 1094, 1096-97 (Ind. 1993).

132. 729 N.E.2d 113 (Ind. 2000).



662 INDIANA LAW REVIEW [Vol. 34:645

convicted of carrying a handgun without a license, a class A misdemeanor.
Based on a prior felony conviction, Ross's A misdemeanor conviction was
enhanced to a Class C felony under the handgun statute. Then, Ross was
adjudicated a habitual offender under the general habitual offender statute

because he had two prior unrelated felony convictions. 133 Ultimately, Ross was
sentenced to eighteen years, eight for the C felony enhanced by ten for the
habitual offender adjudication, for what otherwise began as a misdemeanor with
a maximum sentence of one year. 134

Applying well-settled principles ofstatutory construction, the supreme court
held that the trial court erred in enhancing the handgun offense a second time. 135

In light of the statutory construction favoring more specific statutes as
opposed to more general ones and because of the Rule of Lenity, a
misdemeanor conviction under the handgun statute, once elevated to a
felony due to a prior felony conviction, should not be enhanced again

under the general habitual offender statute.
136

Although the Ross court settled the issue of double enhancements in cases
involving the enhancement ofa handgun charge and the general habitual offender
statute, the larger concern seems to be the potentially far-reaching effect of the

case. At an October 2000 meeting of the Criminal Law Study Commission, the
executive director ofthe Indiana Prosecuting Attorneys Council voiced concern

that Ross may call into question a range ofother criminal statutes that include an
intermediate enhancement for second-time offenders.

137
There are more than

thirty statutes with intermediate enhancements.
138

Application ofRoss to these

cases could result in a significant curtailment of current prosecutorial charging

practice and a significant reduction in sentencing ranges.

Three months after Ross, the court of appeals in Wood v. State 139 addressed
the propriety offurther enhancing a C felony charge ofoperating a vehicle after
lifetime suspension under the general habitual offender statute. The court relied
in part on Ross but largely followed the supreme court's earlier precedent in
Stanek v. State™ in which the court held that because the habitual traffic
offender statute is a discrete, separate, and independent habitual offender statute,

convictions under that statute are not subject to further enhancement under the

general habitual offender statute.
141

In response to Ross, prosecutors have vowed to work during the 200 1 session

133. See id. at 114.

1 34. See Rick Thackeray, Prosecutors Troubledby Habitual OffenderRuling, Ind. Law., Oct.

25, 2000, at 3. The supreme court's opinion does not provide the length of Ross's sentence.

135. See Ross, 729 N.E.2d at 1 17.

136. Id.

1 37. See Thackeray, supra note 1 34, at 3.

138. See id.

1 39. 734 N.E.2d 296 (Ind. Ct. App. 2000).

140. 603 N.E.2d 152 (Ind. 1992).

141. See Wood, 734 N.E.2d at 298 (citing Stanek, 603 N.E.2d at 1 53-54).



200 1 ] CRIMINAL LAW 663

to insert language into the general habitual offender statute that will make it clear
that a defendant whose conviction has been enhanced once is still eligible for
habitual offender enhancement.

142
Such a change in the statute would appear to

the resolve the issue, as Ross is based on statutory construction and not a

violation of the Indiana constitutional prohibition against disproportionate

sentences
143

F. Double Jeopardy Revisited

As explained in last year's Survey, 144 in October 1999 the supreme court
issued Richardson v. State™* in which it "formulated a new methodology for
analysis of claims under the Indiana Double Jeopardy Clause."

146 The court in
Richardson explained the "actual evidence test"

147
as follows:

Under this inquiry, the actual evidence presented at trial is examined to
determine whether each challenged offense was established by separate
and distinct facts. To show that two challenged offenses constitute the
"same offense" in a claim of double jeopardy, a defendant must
demonstrate a reasonable possibility that the evidentiary facts used by

the fact-finder to establish the essential elements ofone offense may also
have been used to establish the essential elements ofa second challenged

offense.
148

In addition to the evidence presented at trial, the reviewing court may also look
at the court's instructions to the jury and the closing arguments of counsel.

149

Under the actual evidence test ofRichardson, defendants now have a much
easier path to reliefthan previously available under the federal Double Jeopardy

Clause.
150

Thus, it should come as no surprise that during the first year after
Richardson, convictions were vacated or reduced in many cases. 151

1 42. See Thackeray, supra note 1 34, at 3.

143. See IND. Const, art. 1, § 16.

1 44. See Joel M. Schumm &James A. Garrard, Recent Developments in Indiana CriminalLaw
and Procedure, 33 IND. L. REV. 1 197, 1226-28 (2000).

145. 717N.E.2d32(Ind. 1999).

146. Taylor v. State, 717 N.E.2d 90, 95 (Ind. 1999).

1 47. The court in Richardson also adopted a statutory elements test. See Schumm & Garrard,
supra note 144, at 1226. However, that test provides no additional protection beyond the Federal

Constitution. See id. at 1227.

148. Richardson, 717N.E.2d at 53.

149. See id. at 54 n.48; see also Lowrimore v. State, 728 N.E.2d 860, 868 (Ind. 2000).

1 50. See Schumm & Garrard, supra note 144, at 1232.
151. See, e.g., Grace v. State, 73 1 N.E.2d 442, 445-46 (Ind. 2000); Logan v. State, 729 N.E.2d

125, 1 36 (Ind. 2000); Lowrimore, 728 N.E.2d at 863; Marcum v. State, 725 N.E.2d 852, 864 (Ind.

2000); Wise v. State, 719 N.E.2d 1 192, 1200-01 (Ind. 1999); Hampton v. State, 719 N.E.2d 803,

808 (Ind. 1999); Noble v. State, 734 N.E.2d 1 1 19, 1 125-26 (Ind. Ct. App. 2000); Sanders v. State,

734 N.E.2d 646, 651-52 (Ind. Ct. App. 2000); Davies v. State, 730 N.E.2d 726, 741 (Ind. Ct. App.



664 INDIANA LAW REVIEW [Vol. 34:645

Likewise, it should come as no surprise that the Attorney General has been
less than enthusiastic about Richardson and its progeny. One example ofthis is
Spears v. State*

52
in which the State raised several "novel" responses to the

defendant's claim that his dual convictions for murder and robbery as a Class A
felony violated the Indiana Double Jeopardy Clause.

153 Two are worthy of
mention here: one that was settled and another that is certain to resurface in
future cases.

First, the court rejected the State's contention that the proper remedy for a
double jeopardy violation was remand for retrial.

154
The court noted that the

State cited no double jeopardy precedent in support, nor did the court find any.

"To the contrary, both before and after Richardson, the remedy for double
jeopardy violations has routinely been to reduce or vacate one of the
convictions."

155 The court concluded that the State "was given one opportunity
to try Spears on the charges it selected, the evidence it presented, and the closing
argument it chose to make. It is not entitled to a second bite of the apple."

156

The State also argued in Spears that the case "should be remanded to the trial
court 'for the trial court's ruling on whether the two crimes are the same for
double jeopardy purposes.""

57
It contended that this "intensely factual

determination" would best be made by the trial court, and then could be reviewed
by the appellate court for an abuse of discretion.

158 The State asserted that the
issue was similar to the existence ofa "serious evidentiary dispute" in the context
of instructions on lesser included offenses, an area in which the court defers to

trial court's findings.
159

The court noted that it had not "expressly ruled on the standard of review in
double jeopardy cases," but acknowledged that the determination of the

"reasonable possibility" component of Richardson "turns on an analysis of the

evidence."
160

However, the trial court in Spears, which was tried before
Richardson was issued, made no findings. "Even ifwe were to adopt a standard
of review analogous to that applied to the instruction issue, de novo review is

appropriate where the trial court made no finding."161

Thus, in light of Spears, it is likely that defense counsel (or, possibly even

prosecutors) will begin to argue the doublejeopardy issue to the trial court with

the hope of securing a factual determination that will aid their case on appeal.

Considering the frequency with which such claims arise, it is likely that the court

2000); Belser v. State, 727 N.E.2d 457, 462 (Ind. Ct. App. 2000).

152. 735 N.E.2d 1 161 (Ind. 2000).

153. Id at 1165.

154. See id. at 1166.

155. Id

156. Id

157. Id at 1165-66.

158. A* at 1166.

159. Id (citing Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998)).

160. Id

161. Id



200 1 ] CRIMINAL LAW 665

of appeals and supreme court will soon be called upon to decide whether
deference is to be given to such findings.

G. Appellate Review ofSentences

Claims of sentencing error are among the most frequently issued raised on
appeal in criminal cases. As the Indiana Supreme Court has made increasingly
clear in recent cases, there are two basic types of sentencing error: (1)
procedural challenges to the sentencing statement as relying on improper

aggravating circumstances or overlooking significant mitigating circumstances

and (2) substantive challenges to the length of the sentence as manifestly

unreasonable.
162

These are two separate inquiries reviewed under different
standards.

163

As to the first type oferror, it is well settled that when a trial court relies on
aggravating or mitigating circumstances to deviate from the presumptive

sentence, it must "(1) identify all of the significant mitigating and aggravating
circumstances, (2) state the specific reason why each circumstance is considered
to be mitigating or aggravating, and (3) articulate the court's evaluation and

balancing of the circumstances to determine if the mitigating circumstances

offset the aggravating ones."
164

Ifthe trial court merely imposes the presumptive

sentence, it need not delineate the aggravating and mitigating circumstances and

weigh them.
165

Successful claims ofprocedural sentencing error generally result in remand
for a new sentencing statement. For example, in Dowdell v. State*66 the trial
court failed to find the defendant's lack of criminal history as a mitigating

circumstance. The court reiterated that an "allegation that the trial court failed
to find a mitigating circumstance requires [the defendant] to establish that the

mitigating evidence is both significant and clearly supported by the record."
167

The court noted the significance ofthis mitigating circumstance and the State's
concession oferror in holding that remand for "resentencing on this record" was
required.

168

Claims of improper aggravating circumstances, however, do not always

result in remand. The court has sometimes declined to consider claims of
improper aggravators, noting that it "need not address these contentions because

a single aggravating circumstance may be sufficient to support an enhanced
sentence. If the trial court improperly applies an aggravator, but other valid

1 62. See Noojin v. State, 730N.E.2d 672, 678 (Ind. 2000) (citing Hackett v. State, 7 1 6 N.E.2d

1273, 1276 n.l(Ind. 1999)).

163. See id.

164. Carter v. State, 71 1 N.E.2d 835, 838 (Ind. 1999) (citing Hammons v. State, 493 N.E.2d

1250, 1254 (Ind. 1986)).

165. See Jackson v. State, 728 N.E.2d 147, 154 (Ind. 2000).

166. 720N.E.2d 1146 (Ind. 1999).

167. A/, at 1154.

168. Mat 1155.



666 INDIANA LAW REVIEW [Vol. 34:645

aggravators exist, a sentence enhancement may still be upheld." 169 However, in
some cases in which the trial court relied on one or more improper aggravating
circumstances, the court has remanded for a new sentencing hearing because it
was unable to conclude that the trial court would have imposed the same
sentence had it not relied on the improper aggravating circumstances.

170
Finally,

the supreme court has, in some recent cases, simply ordered a reduction of the
sentence to the presumptive when the trial court erred in its sentencing
statement.

171
Nevertheless, remand appears to remain the usual remedy. 172

Unlike claims of procedural sentencing error, substantive challenges to the
length of sentence imposed have proven to be more difficult both for advocates
to advance and for appellate courts to address. In many states, even today the
length ofa statutorily authorized sentence is unassailable on appeal.

173
This was

also true in Indiana before 1970 when the Indiana Constitution was amended to
give both the supreme court

174
and court of appeals

175
the power to review and

revise sentences.
176

According to the Report ofthe Judicial Study Commission,

169. Willey v. State, 712 N.E.2d 434, 446 (Ind. 1999) (internal citations omitted); see also

Gibson v. State, 702 N.E.2d 707, 710 (Ind. 1998).

170. See Wooley v. State, 716 N.E.2d 919, 933 (Ind. 1999); see also Angleton v. State, 686

N.E.2d803, 817 (Ind. 1997).

171. See Meagher v. State, 726 N.E.2d 260, 267 (Ind. 2000) ("Because the trial court found

no significant aggravating or mitigating circumstances, we conclude that the imposition of

presumptive sentences for each guilty offense is appropriate."); Marcum v. State, 725 N.E.2d 852,

864 (Ind. 2000) ("Here, however, because the trial court found the aggravating and mitigating

circumstances to be in balance, there is no basis on which to impose consecutive terms.

Accordingly, this case is remanded to the trial court with direction to impose concurrent sentences

on all counts/').

172. See, e.g., Stone v. State, 727 N.E.2d 33, 38 (Ind. Ct. App. 2000).

173. See, e.g., Sinkfield v. State, 669 So. 2d 1026, 1028 (Ala. Crim. App. 1995) ("This court

will not disturb a sentence on appeal where the trial court imposes a sentence within the statutory

range."); Abbott v. State, 508 S.W.2d 733, 735-36 (Ark. 1974) ("[R]eview ofsentences which are

not in excess of statutory limits is not within the jurisdiction of this court because the exercise of

clemency is a function of the executive branch of the government under Art. 6, Sec. 1 8 of the

Arkansas Constitution, and this court is not at liberty to reduce a sentence within statutory limits,

even though we might think it unduly harsh."); Quillen v. State, 929 P.2d 893, 902 (Nev. 1996)

("[A] sentence will be upheld if it is within the district judge's authority to assess."); Sampayo v.

State, 625 S.W.2d 33, 35 (Tex. Crim. App. 1 98 1 ) ("The law is well-settled in Texas that a sentence

will not be disturbed if the penalty is within the prescribed limits set by the legislature.").

174. Ind. Const, art. VII, § 4.

175. Ind. Const, art. VII, § 6.

1 76. Indiana's constitutional amendment came at a time when the issue was receiving national

attention. For example, in 1 968 the American Bar Association observed ofsentencing in the United

States that "in no other area of our law does one man exercise such unrestricted power. No other

country in the free world permits the condition to exist." American Bar Ass'n, Project on

Minimum Standards for Criminal Justice, Standards Relating to Appellate Review of

Sentences 1-2 (1968). In light of the availability of the appellate process to civil litigants, the



200 1
]

CRIMINAL LAW 667

"[t]he proposal that the appellate power in criminal cases include the power to
review sentences is based upon the efficacious use to which that power has been
put by the Court of Criminal Appeals in England."

177

Although neither the court of appeals nor the supreme court reduced a
sentence for over a decade,

178
the supreme court, and to a lesser extent the court

of appeals, have been far more receptive to reducing sentences in recent years.
The authority to reduce a sentence, although grounded in the Indiana
Constitution, is prescribed in greater detail by Rule 7(B) (formerly Rule 17(B))
ofthe Indiana Rules of Appellate Procedure, which provides the courts may not
revise statutorily authorized sentences unless they are "manifestly unreasonable

in light ofthe nature ofthe offense and the character ofthe offender."
179 Many

cases have noted that the court's review under this rule
180

is "very deferential"

to the trial court: "The issue is not whether in our judgment the sentence is
unreasonable, but whether it is clearly, plainly, and obviously so."

181

During the survey period, the supreme court reduced sentences in four cases
on direct appeal:

182
(1) a fourteen-year-old defendant who committed several

crimes, including the rape and murder ofa sixty-nine year-old woman (from 199
to ninety-seven years);

183
(2) a sixteen-year-old defendant convicted of murder

and conspiracy to commit murder (from ninety-five to sixty-five years); 184 (3) a
sixteen-year-old defendant without a significant criminal history convicted of

murdering and attempting to rob a ninety-year-old man (from 1 1 5 to sixty-five
years);

185
and (4) a defendant with an "uncertain criminal history" who was

convicted of murder for his participation as the driver of a car from which a

passenger shot and killed a woman who had shouted a racial epithet (from sixty-
five to fifty-five years).

186
In the first three of these cases, the court's opinions

irony was striking: "Consider that a civil judgment of $2,000 is reviewable in every state at least

once, possibly on two appellate levels. Then consider the unreviewability of a sentence oftwenty

years in prison and a fine of $ 1 0,000." Jack M. Kress, Prescription for Justice: The Theory

and Practice of Sentencing Guidelines 43 (1980) (citing M.E. Frankel, Criminal

Sentences: Law Without Order 76-77 (1 972)).
177. Report of the Judicial Study Commission at 5.

1 78. The court of appeals first reduced a sentence in Cunningham v. State, 469 N.E.2d 1 , 9

(Ind. Ct. App. 1984), and the supreme court did so two years later in Fointno v. State, 487 N.E.2d

140, 149 (Ind. 1986).

179. Spears v. State, 735 N.E.2d 1 161, 1 168 (Ind. 2000).

1 80. Before the amendments that took effect January 1 , 200 1 , the Rule appeared as Appellate

Rule 17(B).

181. E.g., Spears, 735 N.E.2d at 11 68 (quoting Bunch v. State, 697 N.E.2d 1255, 1258 (Ind.

1998)).

1 82. The supreme court also granted transfer and reduced the sentence in Evans v. State, 725

N.E.2d 850 (Ind. 2000), as explained infra notes 203-04.

183. See Trowbridge v. State, 717 N.E.2d 138 (Ind. 1999).

1 84. See Brown v. State, 720 N.E.2d 1 1 57 (Ind. 1 999).

185. See Cherrone v. State, 726 N.E.2d 251 (Ind. 2000).

186. See Baxter v. State, 727 N.E.2d 429, 436 (Ind. 2000).



668 INDIANA LAW REVIEW [Vol. 34:645

are based in large part on the "character ofthe offender," namely the defendant's
youth and, to a lesser degree, lack ofa significant criminal history. In the fourth

case, the court seemingly relies on both the defendant's character and the nature
of the crime in which he was not the key perpetrator. Reducing sentences in
cases involving youthful defendants or defendants with no or minimal criminal
histories is nothing new.

187
In addition, consideration of the nature ofthe crime

has also been relied upon in the past as a reason to reduce a sentence. All ofthis
is consistent with the language of Appellate Rule 7(B), which specifically
mentions the "nature of the offense" and "character ofthe offender."

Unlike the supreme court, the court of appeals has historically been less
inclined to reduce sentences. Two recent cases highlight the divergence ofviews
in that court regarding its role under article VII, section 6. In Bluck v. State™*

Judge Najam, joined by Judge Kirsch, noted that they had "struggled with the
issue" of the proper role of an appellate court in reviewing a sentence and
suggested (but declined to address because the case had to be remanded for
resentencing due to procedural sentencing errors) that the sentence imposed was
manifestly unreasonable.

,89
Judge Garrard dissented, observing that although the

supreme court "as the final arbiter of state law sentencing questions" has the
authority to reduce sentences, two ofthreejudges on a given panel ofthe fifteen-
member court ofappeals "should not exercise that authority absent the adoption
of objective criteria governing the result."

190

Two months later in Allen v. State, 191 Judge Garrard's view was quoted in
a majority opinion authored by Senior Judge Hoffman and joined by Judge
Garrard. The majority held that the statutory maximum sentence of nineteen
years for reckless homicide, failure of driver to fulfill duties following an

accident, and criminal recklessness was not "clearly, plainly, and obviously"
unreasonable.

192
Judge Bailey dissented, observing "[w]hile it may be

comfortable to rubber stamp every sentence supported by the [']objective

criteria' ofone remaining valid aggravating circumstances, such a dispassionate,

complacent approach constitutes an abdication of the solemn constitutional

responsibility imposed upon this court under Indiana's criminal justice

system."
193

There is only one published court ofappeals opinion from the survey period

in which a sentence was reduced as being manifestly unreasonable. In Redmon
v. State™ the court reduced the maximum sentence oftwenty years for burglary

1 87. See, e.g. , Carter v. State, 7 1 1 N.E.2d 835 (Ind. 1 999) (reducing sentence offourteen-year-

old defendant); Willoughby v. State, 660 N.E.2d 570 (Ind. 1 996) (reducing sentence for defendant

who lacked a criminal history).

188. 716 N.E.2d 507 (Ind. Ct App. 1999).

189. Id. at 515.

1 90. Id. at 5 1 7 (Garrard, J., dissenting).

191. 719N.E.2d815,820(Ind. Ct. App. 1999).

192. Id

193. Id. at 820-21 (Bailey, J., dissenting).

194. 734 N.E.2d 1088 (Ind. Ct. App. 2000).



200 1
]

CRIMINAL LAW 669

imposed on a fifteen-year-old who broke into the home of his mother and step-
father to the presumptive term often years.

195 The court noted that the burglary
did not cause personal injury to anyone, caused little, if any, damage to the
dwelling, and did not result in any appreciable cost to the victims.

196
Moreover,

in looking at the character ofthe offender, the court noted that Redmon was only
fifteen at the time of the offense and Indiana Supreme Court precedent holding
that "[a] defendant's young age is to be given considerable weight as a mitigating
circumstance,"

197
especially when the offender is younger than sixteen. 198

Considering the rather dramatic change in membership of the court of
appeals in the past few years, one might suspect that court to become more
receptive to exercising its power under article VII, section 6 in the future. Judge
Hoffman and Judge Garrard, both ofwhom served on the court for decades, are
now senior judges who participate in relatively few cases. Judge Mathias, who
had been on the court for less than six months, authored Redmon, and Judge
Bailey, who had been on the court for only two years, wrote the strongly worded
Allen dissent.

The receptiveness of the court of appeals to entertain claims of manifestly
unreasonable sentences assumes new significance beginning in 2001. In
November 2000, voters approved a constitutional amendment that will greatly
reduce the mandatoryjurisdiction ofthe supreme court. Before the amendment,
the supreme court heard all criminal appeals in which the sentence imposed was
greater than fifty years on any single count. After the amendment, all term-of-
years appeals will now go to the court of appeals, and the supreme court will
hear, on direct appeal, only death penalty and life without parole cases. Thus, if
substantive sentence review is to take place in the future, it will have to be, at

least in the first instance, in the court ofappeals. With its dramatically reduced

mandatory caseload, however, the supreme court now will have considerably
more time to grant transfer in sentencing cases.

Regardless of whether the case is being heard in the court of appeals or the

supreme court, substantive appellate review of sentences will likely continue to
be a difficult issue. To some extent, this is unavoidable because sentencing
decisions, which feature unique crimes and unique criminals, often, ifnotalways,

defy quantification.
199

Nevertheless, it is important that opinions strive for some
degree of consistency to guide trial judges and advocates at both the trial and

appellate levels, as well as to ensure that those defendants with similar

backgrounds who commit similar offenses are treated similarly. As the cases
discussed above highlight, both the supreme court and court ofappeals have been

especially receptive to reductions in cases ofyouthful defendants.
200

In addition,

195. See id. at 1095.

196. See id. at 1094.

197. Id. (quoting Brown v. State, 720 N.E.2d 1 157, 1 159 (Ind. 1999)).

198. See id. (citing Carter v. State, 711 N.E.2d 835, 842 (Ind. 1999)).

1 99. See generally Carter, 7 1 1 N.E.2d at 84 1

.

200. Other cases have made it clear that youth generally ceases to be a mitigating circumstance

at age eighteen. See, e.g., Sensback v. State, 720 N.E.2d 1 160 (Ind. 1999).



670 INDIANA LAW REVIEW [Vol. 34:645

there is already considerable case law explaining when a defendant's mental
illness should lead to a reduction of a sentence.

201
Along the same lines, one

would hope that case law will continue to develop, drawing upon previous cases,
in explaining when a reduction is appropriate and when it is not. Indeed, Indiana
could look to other states that have developed an extensive body of sentencing
law for guidance.

202

Questions will continue to surface, however. For example, what amount of
deference, if any, should the supreme court give to the court of appeals' review
of a sentence? The two courts review sentences under similarly worded, yet
separate, provisions of the Indiana Constitution. If the court of appeals affirms

a sentence under article VII, section 6, the defendant may nonetheless ask the
supreme court to review the sentence under article VII, section 4. Thus,
defendants have two opportunities for sentence review, and both courts have the
opportunity to improve upon the recent efforts to make the process of appellate
sentence review more consistent and predictable.

The best predictor ofthis may be the supreme court's recent opinion in Evans
v. State,

203
in which the defendant, who was sentenced to the maximum term of

fifty years for dealing in cocaine, sought transfer after the court of appeals

affirmed his sentence. The supreme court granted transfer and reduced the
sentence to the presumptive term of thirty years, relying on the defendant's

youthful age, lack of a violent criminal history, and the fact that the defendant

had sold a relatively small amount ofdrugs to a police informant who sought him
out.

204
There was no mention of deference to the court of appeals' holding that

the sentence was not manifestly unreasonable, and thus it would appear that
defendants have two chances to have their sentence reviewed by each court

applying the same standard.
Another issue that may surface is whether the highly deferential "manifestly

unreasonable" standard is consistent with the original purpose of the 1970

amendment, which purported to be modeled after the efficacious use to which
that power has been put by the Court of Criminal Appeals in England. Clearly,
appellate sentence review in Indiana is far less extensive than in England, but this

is at least partially explained by the very different sentencing structures in each.

201. See,e.g., Weeks v. State, 697 N.E.2d 28, 31 (Ind. 1998); Archer v. State, 689 N.E.2d 678,

685-86 (Ind. 1997); Gambill v. State, 675 N.E.2d 668, 677-78 (Ind. 1996); Mayberry v. State, 670

N.E.2d 1262, 1271 (Ind. 1996); Barany v. State, 658 N.E.2d 60, 67 (Ind. 1995); Walton v. State,

650 N.E.2d 1134, 1137 (Ind. 1995); Christopher v. State, 511 N.E.2d 1019, 1023 (Ind. 1987).

202. See, e.g., Susanne Di Pietro, The Development ofAppellate Sentence Review in Alaska,

JUDICATURE, Oct-Nov. 1991, at 152-53 (noting that the Alaska Court of Appeals "routinely

reduces excessive sentences to bring them in line with sentences given in comparable cases and has

created an extensive body of case law articulating appropriate sentencing principles, establishing

benchmark terms for many classes of offenses, . . . establishing standards for the extent to which

sentences can be increased in aggravated cases . . . [and] regulating the total aggregate terms that

may be imposed for offenders who are sentenced consecutively").

203. 725 N.E.2d 850 (Ind. 2000).

204. See id. at 85 1-52.



200 1 ] CRIMINAL LAW 67

1

England has no criminal code and trial courts are free to choose any sentence
(imprisonment, probation, commitment to a mental hospital, custodial training
for young offenders, etc.) for any crime except murder, which is punishable only
by an indefinite sentence of life imprisonment, and three rare offenses punishable
by death.

205
If the trial court chooses imprisonment, it has a great deal of

discretion as there are no mandatory minimum sentences (except for murder) and
the maximum fixed by statute is "for the most part so much higher than what is
normally considered appropriate for those offences that the process offixing the
length of imprisonment seldom involves any consideration of the statutory

provision."
206

The Court ofAppeal (Criminal Division) hasjurisdiction to review sentences
upon application by the defendant. According to statute, the appellate court may
intervene "if it considers that the appellant should be sentenced differently for

any offence for which he was dealt with by the court below" and may substitute
for that sentence "such sentence ... as it thinks appropriate for the case."

207
Not

surprisingly, appellate review of sentences is "the main business" of the Court
of Appeal.

208

Although the Court ofAppeal has developed many sentencing principles that
are worthy of consideration by Indiana's appellate courts,

209
the wholesale,

seemingly de novo review of sentences performed there has not, to date, been

advocated here.
210

Such an activist role of the judiciary would appear to be
unnecessary in light of the active role of the legislature in sentencing matters.

Indeed, the ABA Standards for Sentencing advocate that reviewing courts "make
effective the legislature's public policy choices regarding sentencing."

211 The
current statutory scheme in Indiana requires thatjudges must adhere to somewhat
narrow sentencing ranges for each class of offense

212
and prohibits suspension

205. See D.A. Thomas, Appellate Review ofSentences and the Development ofSentencing

Policy: The English Experience, 20 ALA. L. REV. 193, 194 (1968).

206. Id. at 1 95; see also D.A. Thomas, Sentencing in England, 42 MD. L. REV. 90, 11 3 ("With

the exception of a few offences for which the maximum sentence is set at a level which is lower

than many judges would wish, the majority of sentences imposed are far below the permitted

maximum sentence.").

207. Thomas, supra note 206, at 196 (quoting Justice Act 1967, ch. 80, 97(7) (Eng.)).

208. Id.

209. See id. at 202-16.

210. See generally Hardebeck v. State, 656 N.E.2d 486, 489-90 (Ind. Ct. App. 1995).

211. American Bar Ass'n, Criminal Justice Sentencing Standards, 18-8.2 (3d ed.

1994).

212. See Ind. Code § § 35-50-2-3 ( 1 998) (presumptive sentence for murder is 55 years; range

is 45 to 65 years), 35-50-2-4 (presumptive sentence for a Class A felony is 30 years; range is 20 to
50 years), 35-50-2-5 (presumptive sentence for a Class B felony is 10 years; range is six to 20

years), 35-50-2-6 (presumptive sentence for a Class C felony is four years; range is two to eight

years), 35-50-2-7 (presumptive sentence for a Class D felony is one and a half years; range is six
months to three years).



672 INDIANA LAW REVIEW [Vol. 34:645

ofa sentence below the minimum for certain offenses213 or certain offenders.214

Statutory law provides a non-exhaustive list of circumstances to consider in
imposing sentence.

215
Trial courts must impose consecutive sentences in certain

circumstances,
216

have the discretion to do so in other circumstances,217 but must
adhere to specific limitations on the aggregate number ofyears.218

Nevertheless, one could question whether the highly deferential "manifestly
unreasonable" standard currently applied is thatwhich was envisioned at the time
ofthe adoption ofthe 1970 amendment. Ultimately, this is an issue that can only

be addressed by the supreme court if it decides to amend the appellate rules.

Conclusion

In short, the legislation and decisional law of the Survey period provided a
few answers but also left several questions unresolved. The General Assembly
(with some help from the supreme court) corrected a technical, yet far-reaching,
problem with the drunk driving statute and clarified a relatively obscure venue

provision. In addition, the supreme court appears to have resolved long-standing

confusion and inconsistency regarding the proper standard of review in

challenges to confessions.

Nevertheless, important questions remain. Discontent over the seemingly

unpopular yet constitutionally supportable Winegeart reasonable doubt

instruction may lead to a call for reconsideration of the supreme court's 1996
"recommendation" in light of the numerous challenges and the soon-to-be

adopted alternative pattern instruction. Questions will also continue to loom

regarding what constitutes a material variance, whether that determination is

influenced by the severity ofthe charge at issue, and whether remand for retrial

or vacation ofthe conviction is the appropriate remedy. In the double jeopardy

context, the court of appeals or supreme court will likely be asked to decide
whether or not to defer to a trial court's determination of whether two offenses

violate the Indiana Double Jeopardy Clause under Richardson's actual evidence

test.

Finally, beginning in 2001, the future of substantive appellate sentence

review becomes even less certain as the supreme court, which has been fairly

proactive in reducing sentences, loses its mandatory caseload ofall term-of-years

criminal appeals. These cases will now be heard by the court of appeals, which
has historically been less receptive to sentence reductions but has recently shown

signs of changing course. Regardless of whether substantive sentence review

213. See id. § 35-50-2-2.

214. See id. §§ 35-50-2-2(b)(l)-(3), 35-50-2-2.1.

215. See id §35-38-7.1.

216. See id § 35-50-l-2(d)-(e).

217. See id § 35-50-1 -2(c).

2 1 8. See id. ("[E]xcept for crimes of violence, the total consecutive terms of imprisonment

.

. . shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher

than the most serious of the felonies for which the person has been convicted.").



200 1 ] CRIMINAL LAW 673

occurs in the court ofappeals on direct appeal or is shaped through the grant of

transfer by the supreme court, either court is well-positioned to develop

sentencing principles that will not only aid litigants and trial judges in future

sentencing cases but also ensure greater fairness and consistency, i.e., that similar

defendants who commit similar crimes are treated similarly.