Indiana Law Review


Recent Developments in Indiana Criminal
Law and Procedure

Joel M. SCHUMM*

The survey period, October 1, 2000 to September 30, 2001, produced
legislation and decisional law that both broke new ground and clarified existing
confusion. The pages that follow provide a summary of some of the most
significant developments in the realm of Indiana criminal law and procedure.

I. Legislative ENACTMENTS

The General Assembly enacted a number of bills to define new crimes,
toughen penalties for existing crimes, and correct or clarify issues and problems

raised in recent court opinions.

A. New or Enhanced Offenses

The General Assembly both created new offenses and amended existing
statutes to criminalize previously legal conduct or enhance the penalty for

previously illegal conduct.

The new offense of "identity deception," a Class D felony, was created. It
occurs when a person "knowingly or intentionally obtains, possesses, transfers,
or uses the identifying information^'^ of another person: (1) without the other

person's consent; and (2) with intent to harm or defraud the other person . . . ."^

The statute includes a number of exceptions, which apply to underage persons
who use false identification to obtain alcohol, cigarettes, pornography, etc.^ In
addition, the legislature created the offense of"Interference with a Firefighter,"

which can vary from a Class C infraction to a Class D felony, for various forms
of conduct that hamper firefighters' ability to perform their duties.'^

The intimidation statute was amended to criminalize communication of a
threat with intent "of causing: (A) a dwelling, a building, or another structure;

or (B) a vehicle; to be evacuated . . . ."^ The base offense is a Class A
misdemeanor but becomes a Class D felony if"the threat is communicated using
property, including electronic equipment or systems, of a school corporation or

other governmental entity."^ Finally, the battery statute was amended to create
a Class A felony offense when the conduct "results in the death of a person less

* Lecturer in Law, Indiana University School of Law—Indianapolis. B.A., 1992, Ohio
Wesleyan University; M.A., 1994, University ofCincinnati; J.D., 1998, Indiana University School

of Law-Indianapolis.

1

.

"Identifying information" is defined broadly to include, among other things, Social

Security numbers, fingerprints, and telecommunication identiiying information. Ind. Code § 35-

43-5-l(h) (Supp. 2001).

2. /^. § 35-43-5-3.5(a).

3. Id § 35-43-5-3.5(b).

4. !d. § 35-44-4.

5. W. §35-45-2-l(a)(3).

6. /^. §35-45-2-l(b)(l)(D).



1348 INDIANA LAW REVIEW [Vol. 35:1347

than fourteen (14) years of age and is committed by a person at least eighteen

(18) years of age."^

B. DNA Evidence

The General Assembly also enacted two bills relating to DNA evidence that
highlight such evidence may be a double-edged sword in criminal prosecutions.
The first bill allows DNA evidence to be used to lengthen the statute of
limitations for certain crimes, while the second bill allows many convicted felons
greater access to DNA testing and analysis to exonerate themselves. First, the
general statute of limitations of five years for Class B and C felonies was
extended in prosecutions

that would otherwise be barred . . . [to] one (1) year after the earlier of
the date on which the state: (1) first discovers the identity of the

offender with DNA (deoxyribonucleic acid) evidence; or (2) could have
discovered the identity of the offender with DNA (deoxyribonucleic
acid) evidence by the exercise of due diligence.*

The statute also extended the one-year period to July 1 , 2002, for Class B and C
felonies "in which the state first discovered the identity of the offender with

DNA (deoxyribonucleic acid) evidence after the time otherwise allowed for
prosecution and before July 1, 2001 . . . ."' The second bill established detailed
procedures by which persons convicted of murder or a Class A, B, or C felony
can petition the sentencing court to require DNA testing in certain
circumstances.

'°

C. Crimes of Violence

In Ellis V. State, ^^ the defendant was convicted of several crimes, including
murder and two counts ofattempted murder. He was sentenced to the maximum
term of sixty-five years for murder and fifty years for each attempted murder, to

be served consecutively. On appeal to the supreme court, he argued that the
sentences for his attempted murder conviction could not exceed fifty-five years,

the presumptive sentence for the next higher level felony. Indiana Code section
35-50-l-2(c) limits the total of the consecutive terms of imprisonment to which

a defendant may be sentenced "for felony convictions arising out of an episode
ofcriminal conduct," except for "crimes ofviolence," to "the presumptive term

for a felony which is one (1) class felony higher than the most serious of the

felonies for which the person has been convicted."'^ The court noted that the
statute clearly listed "crimes of violence," including murder and aggravated

7. Id § 35-42-2-1 (a)(5).

8. Id § 35-41-4-2(b).

9. Id

10. M§ 35-38-7.
11. 736N.E.2d 731 (Ind. 2000).

1 2. Id at 736 (citing Ind. Code § 35-50- 1 -2(c) ( 1 998)).



2002] CRIMINAL LAW 1349

battery, but did not include attempted murder.'^ Although aggravated battery is

a lesser included offense of attempted murder, the court found this to be of no

consequence in the face ofthe clear statutory language.''* In addition, the rule of

lenity requires that the limitation be interpreted to apply "for consecutive

sentences between and among those crimes that are not crimes of violence."'^
Accordingly, the court concluded that Ellis could be sentenced for his two
attempted murder convictions to no more than fifty-five years, the presumptive
sentence for murder.'^

Justice Boehm, joined by Justice Dickson in dissent, reasoned that the
majority's construction was not consistent with legislative intent, would produce
"upside-down or absurd results," and seemed to violate the proportionality

requirement of article I, section 16 of the Indiana Constitution.'^ Although a

minority view in 2000, Justice Boehm's conclusion became the law in 200 1 when
the General Assembly made its intent clear and amended Indiana Code section
35-50-1 -2(a) to include "attempted murder" as a "crime of violence."'*

D. Sentencing

During the survey period the General Assembly either corrected or clarified

a few statutory provisions regarding sentencing. First, the defmition of

"minimum sentence" was updated for the offenses ofmurder (to forty-five years)
and Class D felonies (to one-halfyear) to be consistent with the statutory scheme
and the presumptive sentences that had been altered years earlier.'^ Second, the

misdemeanor probation statute was amended to clarify that probation for any
class ofmisdemeanor may be one year but "the combined term of imprisonment
and probation for a misdemeanor may not exceed one (1) year."^° Finally, the
habitual offender statute was amended, presumably in response to Ross v. State?^
and its progeny, as discussed in last year's survey.^^ Subsection (b) ofthe statute

now prohibits the State from seeking to have a defendant sentenced as a habitual
offender if "(1) the offense is a misdemeanor that is enhanced to a felony in the

13. Id.

14. Id.2Xmi.

15. Id

16. Id

17. /</. at 741 (Boehm, J., dissenting).

18. IND. Code § 3 5-50-1 -2(a)(2) (Supp. 2001). The statute was also amended to include

"sexual misconduct with a minor as a Class A felony (IC 35-42-4-9)" within the definition. Id. §
35-50-l-2(a)(ll).

19. Id § 35-50-2-l(c).

20. Id § 35-50-3-l(b).

21. 729N.E.2dll3(Ind.2000).

22. See Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure., 34

Ind. L. Rev. 645, 662-63 (2001). As explained in text, however, the amendment was the opposite

of what prosecutors had vowed to seek, as certain offenses and categories of offenses have been

removed from eligibility for enhancement under the general habitual offender statute.



1350 INDIANA LAW REVIEW [Vol. 35:1347

same proceeding as the habitual offender proceeding solely because the person
had a prior unrelated conviction; or (2) the offense is an offense under IC 9-30-

10-16orIC9-30-10-17."2' However,

The requirements in subsection (b) do not apply to a prior unrelated
felony conviction that is used to support a sentence as a habitual

offender. A prior unrelated felony conviction may be used under this
section even ifthe sentence for the prior unrelated offense was enhanced
for any reason, including an enhancement because the person had been
convicted of another offense [except several offenses under Title 9].^"^

II. Decisional Law Developments

A. Search and Seizure

Scores of opinions during the survey period addressed issues relating to

searches and seizures under the Fourth Amendment, article I, section 1 1 of the
Indiana Constitution, and allied Indiana statutory law. This survey is limited to

a few significant cases that either broke new ground or raised issues likely to lead
to future litigation.

J. Vehicle Searches andSeizures.—In Lockett v. State^^ the supreme court
granted transfer to consider whether the Fourth Amendment^^ prohibits police
from routinely inquiring about the presence of weapons during a traffic stop.
After reviewing U.S. Supreme Court decisions on the general issues ofthe length

and method of vehicle stops and concerns for officer safety, the court reiterated

well-settled Fourth Amendment jurisprudence that allows police to order a
motorist stopped for a traffic violation to exit his or her vehicle.^^ The court
reasoned that "asking whether the stopped motorist has any weapons is far less
intrusive and presents insignificant delay."^* Although the federal circuits are

split on whether the Fourth Amendment permits police to ask questions unrelated
to the purpose ofthe traffic stop, the court found no Fourth Amendment violation
in Lockett?'^ The court noted that the officer smelled alcohol as he approached
the vehicle and asked the occupant if he had any weapons during his
investigation of that offense: "The question was justified by police safety
concerns, and it did not materially extend the duration of the stop or the nature

23. IND. Code § 35-50-2-8(b) (Supp. 2001).

24. Id. § 35-50-2-8(e).

25. 747N.E.2d 539 (Ind. 2001).

26. The defendant waived any claim under the state constitution by failing to cite any

authority or independent analysis supporting a standard different from the Fourth Amendment. Id.

at 541.

27. Id at 542.

28. Id

29. /t/. at 543.



2002] CRIMINAL LAW 1351

of the intrusion."^^

In a separate opinion in which he concurred in the result, Justice Rucker

disagreed with the majority's adoption of a bright-line rule that allows officers

routinely to ask drivers stopped for traffic violations if they are carrying a

weapon.^' Instead, he would require the officer to have "an objectively

reasonable safety concern before making such an inquiry."^^ Quoting from a
Tenth Circuit case, he agreed that such routine questioning "could conceivably

result in a full-blown search of the passenger compartment of the detainee's

vehicle, no matter how minor the traffic infraction that initially prompted the
stop, and even ifthe officer had no reasonable safety concerns when he posed the
question."^^

Although the majority's approach is likely the one more consistent with the

Fourth Amendmentjurisprudence ofthe current membership ofthe U.S. Supreme
Court, Justice Rucker' s concurring opinion is arguably the better-reasoned

approach. It is certainly true that a simple weapon inquiry does not materially
extend the duration of a traffic stop or the nature of the intrusion; however, the

notion that such an inquiry is "justified by police safety concerns" is not so clear.

First, Supreme Court authority allows citizens the right to refuse to answer an
officer's questions during a Terry stop.'* Moreover, as Justice Rucker aptly

pointed out, "the notion that asking a driver if he has any weapons somehow
advances officer safety is suspect. In reality a driver could in fact be heavily

armed and simply say no to an officer's inquiry."" Indeed, the holding in Lockett
will likely do little to further the protection ofpolice officers because the average

citizen will likely answer truthfully in the negative and those who are illegally
carrying guns may well be less forthright than Mr. Lockett, who admitted to
having a handgun in his car.'^ Finally, by finding the state constitutional claim

waived, the supreme court has left open the possibility of later striking down the
practice under the reasonableness test ofarticle I, section 1 1 ." However, in light

of the court's heavy reliance on officer safety concerns, a state constitutional
challenge would appear unlikely to succeed.

Just a month before deciding Lockett, the supreme court took a slightly
different approach in Wilson v. State^^ in which it addressed the propriety of

police officers performing pat-down searches ofmotorists pulled over for traffic

stops before asking them to enter their police vehicle. In Wilson, the defendant

was pulled over for speeding, and the officer suspected that he was intoxicated.

30. Id.

31. /<i. at 544 (Rucker, J., concurring).

32. Id.

33. Id (quoting United States v. Holt, 229 F.3d 931, 940 (10th Cir. 2000)).

34. Id. at 545 n.4 (Rucker, J., concurring) (citing Florida v. Royer, 460 U.S. 491, 497-98

(1983)).

35. Id

36. See id. at 541.

37. See generally Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995).

38. 745 N.E.2d 789 (Ind. 2001).



1352 INDIANA LAW REVIEW [Vol. 35:1347

Noting that neither the field sobriety tests nor the portable breath test required the
motorist to enter the police vehicle and that the officer did not suspect that the

motorist was armed, the court concluded that the search violated the Fourth
Amendment because "the pat-down search was not supported by a particularized
reasonable suspicion that Wilson was armed, and because there was no
reasonably necessary basis for placing Wilson in the squad car . . . ."^^

Wilson is not cited or discussed in Lockett, but the two cases can be easily
reconciled. In Lockett the defendant was not subjected to a Terry frisk and
therefore, in the majority's view, particularized suspicion was not required as it
was in Wilson.^^ Although a pat-down search is certainly more intrusive than the
mere asking of a question, which is not a search or seizure standing alone, the
majority opinion in Lockett does not base its holding on this distinction but rather
on the more dubious issue ofofficer safety concerns. It would appear that those
concerns were equal in both cases of suspected drunk driving. Moreover, the
holding in Lockett would appear to suggest that officers cannot routinely ask
motorists ifthey have any drugs in their vehicles because such an inquiry would
not be justified on officer safety concerns.

Finally, the supreme court and court of appeals addressed two other issues
of first impression in the vehicle context. In Mitchell v. State,^^ the supreme

court held that the Indiana Constitution does not prohibit pretextual stops. The
court reasoned that the potential for unreasonable police conduct is most likely

to arise "not in the routine handling of the observed traffic violation, but in the

ensuing police investigatory conduct that may be excessive and unrelated to the
traffic law violation.'"*^ Although it is certainly true that most constitutional

violations will occur during subsequent investigatory conduct, the court did not

acknowledge that pretextual stops allow officers to observe potentially

incriminating items in plain view and, in light ofLockett, ask questions that could

lead motorists to incriminate themselves.*^ It would seem that the larger problem
with pretextual stops, ifthey were deemed unconstitutional, would be the means
by which a defendant could establish that a valid traffic stop was a pretext for
another purpose.'** Short ofan officer's admission that a stop was pretextual, the
proof would seemingly come in the form of a pattern of pretextual stops by a
certain officer, which might be difficult to establish depending on the specificity

39. Mat 793.
40. Compare Lockett, 747 N.E.2d at 541-43, with Wilson, 745 N.E.2d at 793-94.

Nevertheless, Justice Rucker's concurring opinion in Lockett draws upon Terry and other U.S.

Supreme Court authority to support his view that a weapon's inquiry should be based on some sort

of particularized (and reasonable) suspicion. See Lockett, 747 N.E.2d at 544-45 (Rucker, J.,

concurring).

41. 745 N.E.2d 775, 789 (Ind. 2001).

42. Id3Xni.

43

.

See generally Wesley MacNeil Oliver, With an Evil Eye and Unequal Hand: Pretextual

Stops and Doctrinal Remedies to Racial Profding, 74 TUL. L. REV. 1409, 1416-22 (2000)

(reviewing the federal constitutional implications of pretextual stops).

44. See generally id at \422-25.



2002] CRIMINAL LAW 1353

of police records and the demographics of an officer's given patrol area.

In Wilkinson v. State,"^^ the court of appeals held that a random computer
check of license plate numbers was not a search under the Indiana Constitution.
In that case, the officer ran a random check on the license plate ofa truck parked
in a convenience store lot and learned that the truck was registered to Wilkinson,

who was a habitual traffic violator. Because the driver ofthe truck matched the
physical description provided from the license plate check, the officer stopped

the truck as it departed the store lot, and upon confirming the identity of the

driver, arrested him."*^ Relying on cases from other states, the court noted that

"[a] search connotes prying into hidden places to observe items which are

concealed; there is no search attendant to viewing an object which is open to

view."*^ Although it affirmed the conviction that resulted from the random
license plate check, the court nevertheless noted that it shared the defendant's

concern that this procedure "could lead to pretextual stops" and in an unusual

display of candor "question[ed] whether random checks of license plates in
convenience store parking lots represent[ed] an efficient use of the limited

resources of law enforcement agencies.'"**

2. Execution ofWarrants andStale Probable Came.—In Huffines v. State,^"^
the court ofappeals addressed the interplay ofIndianaCode section 35-33-5-7(b),
which requires search warrants to be executed within ten days of issuance, with

the Fourth Amendment and article I, section 1 1 of the Indiana Constitution.
Adopting the "totality ofthe circumstances" approach used by federal courts, the

court held that the State must demonstrate that the warrant was supported by
probable cause at the time ofexecution.^^ In that case, eight days lapsed between

the time the warrant, which sought cocaine evidence and was based on a single
observation and purchase, was issued and executed. Additionally, no criminal
activity was suspected or corroborated during this time. Therefore, the court held
that the search was improper under the Fourth Amendment.^' After considering
Indiana cases ofboth pre-issuance and pre-execution delay, the court reached the

same conclusion under the state constitution, seemingly applying the same
requirement that probable cause continue to exist at the time ofexecution.^^ The
court did not specifically address the usual line of inquiry under article I, section

1 1 , i.e., whether the "police behavior was reasonable."^^

Six months after Huffines, the court ofappeals in Caudle v. State^^ addressed

another claim ofstale probable cause in a case in which the warrant was executed

45. 743 N.E.2dl267(Ind.Ct.App. 2001).

46. /^. at 1269.

47. Id. at 1270 (quoting People v. Bland, 390 N.E.2d 65, 67 (III. App. Ct. 1979)).

48. Id.

49. 739 N.E.2d 1093 (Ind. Ct. App. 2000).

50. /£/. atl097.

51. M at 1097-98.
52. 5ge jf/. at 1098-99.

53. See generally Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995).

54. 749 N.E.2d 616 (Ind. Ct. App. 2001).



1354 INDIANA LAW REVIEW [Vol. 35:1347

seven hours before the ten-day statutory period would have expired. Assuming
arguendo that the probable cause was stale, the court nevertheless affirmed the
trial court's admission of evidence based on the good faith exception to the
exclusionary rule.^^ Noting that the search preceded the issuance ofthe Huffines
opinion by eighteen months, the court found that the detective was acting in good
faith in delaying the execution of the warrant for nine days while he waited to

catch the defendant at home.^^ The court acknowledged, however, that after
Huffines "a question exists about whether or not a police officer can in good faith
execute a warrant under circumstances similar to those in Huffines because that

decision should cause an officer to no longer 'reasonably believe' that such a
warrant would be valid" under the constitutional provisions.^^

On rehearing Caudle argued that federal circuit courts have held that the
good faith exception does not apply to errors in the execution of warrants and
should not have been applied in his case.^* Nevertheless, the court of appeals

affirmed its earlier opinion, reiterating that the detective was permitted to rely on
the ten-day statutory period when executing the warrant "unless the statute was
'clearly unconstitutional.'"^^ Although many circuit courts have held that
probable cause must exist at the time of execution of a warrant regardless of a
statutory outer limit, some state courts have held that the execution of a warrant
within the statutory period is per se timely.^ Because execution within the

statutory period was not "clearly unconstitutional" in the absence ofany Indiana
authority and conflicting authority from otherjurisdictions, the court affirmed the

application ofthe good faith exception and the admission ofthe evidence seized

during execution of the warrant.^'

In light of Huffines and Caudle, one would expect that, in the future, law

enforcement officers will execute warrants as soon as feasible and well before

the ten-day statutory period. If they do not, however, and probable cause has

dissipated in the interim, it would appear unlikely that an Indiana court will allow

them to seek refuge in the good faith exception. The law is now both clear and
simple: the statute sets an outer limit often days, but the relevant inquiry is

whether probable cause continues to exist at the time of issuance.

B. Confessions

The Indiana Supreme Court addressed several challenges to the admissibility
of confessions during the survey period; most of these were resolved in the

State's favor in the trial court and affirmed on appeal by application of existing

precedent and a highly deferential standard of review. Two opinions stand

55. /f/. at 620-22.

56. /£/. at622.

57. Id.

58. Caudle v. State, 754 N.E.2d 33, 34 (Ind. Ct. App. 2001).

59. Id. at 35 (quoting Illinois v. Krull, 480 U.S. 340, 349-50 (1987)).

60. Id

61. Mat 36.



2002] CRIMINAL LAW 1355

out—one for its holding that significantly clarified the law relating to juvenile
confessions and the other for its refusal to modify or reconsider existing law in

an area where reconsideration seems appropriate.

In Stewart v. State,^^ the supreme court addressed the admissibility of a

juvenile's murder confession in the face ofa waiver signed by his biological non-

custodial father. According to statute, the constitutional rights of an

unemancipated person under eighteen may be waived only "by the child's
custodial parent, guardian, custodian, or guardian ad litem" iffour conditions are

met.^^ In relatively short order, the court held that Stewart's biological father

was not a custodial parent.
The undisputed facts were that Stewart was born out of wedlock, no court

order of custody was admitted at trial or otherwise claimed to exist, and Stewart
did not live with his biological father.^ The court considered a number of
statutory provisions that did not provide "a direct answer" to the issue, but which

all pointed to the conclusion that the term "custodial parent" applied to "either

a person who has been adjudicated by a court to have legal custody of the child,
or a parent who actually resides with the unemancipatedjuvenile."^^ Finally, the
court rejected the State's contention, that because ofthe biological relationship,

Stewart's father satisfied the statutory mandate that requires the juvenile's

"parent" join in the waiver: "This contention plainly reads 'custodial' out ofthe

statute. It seems clear that the statute contemplates consultation and waiver by

a person in the close relationship afforded by either formal custody or actual

residence in addition to a biological or adoptive relationship."^^ Because

Stewart's father met neither test, the court held that admission of his confession

was error.^^ Moreover, because the State's remaining evidence did not directly
place Stewart at the scene ofthe murder, the court was unwilling to find that the
error was harmless, that is, that it did not affect Stewart's substantial rights.^*

Stewart represents an important victory for juvenile defendants by ensuring

the voluntariness oftheir confessions through a requirement that the parent with

whom they consult is one that is likely to make the consultation a meaningful
one. Henry v. State,^^ on the other hand, rejects a requirement that could bolster

the reliability of adult confessions.

In Henry, the defendant confessed to the murder of an antique storeowner

after being told by police that his fingerprints were found at the scene of the

62. 754 N.E.2d 492 (Ind. 2001).

63. Id. at 494 (citing iND. CODE § 31-32-5-1(2) (1998)).
64. Mat 495.
65. Id. at 495 & n.2.
66. Id at 496.

67. Id

68. Id; see also Fleener v. State, 656 N.E.2d 1 140, 1 141 (Ind. 1995) (discussing harmless

error under Indiana law, which differs from federal constitutional harmless error as explained in

Chapman v. California, 386 U.S. 18 (1967)).

69. 738 N.E.2d 663 (Ind. 2000).



1356 INDIANA LAW REVIEW [Vol. 35:1347

crime and a person in the store had identified him as the killer.^° However,
"[njeither statement was true'V* the police had lied to Henry.

Henry challenged the admissibility ofhis confession in the trial court, but his
motion to suppress was denied.^^ On appeal he acknowledged the supreme court
precedent ofLight v. State,^^ which had upheld the admissibility ofa confession
following a four-hour interrogation punctuated by police conduct involving

cursing, lying, and smacking the defendant on the arm,^"* but urged the court to
revisit the issue and "announce a bright line rule which would render
inadmissible[] a confession obtained solely by deceitful police activity

."^^

The court declined the invitation to revisit Light, preferring instead to
continue to review each confession based on the "totality ofthe circumstances"
test.^^ Although the court stated that it "continue[s] to disapprove of deceptive

police interrogation tactics," it nevertheless upheld the admissibility of Henry's

confession because he was a man of average intelligence; the interrogation was
brief (one hour); he was Mirandized three times; the police made no threats or
promises to him; and he did not ask for an attorney.^^ "Balanced against the

officer's obvious deception, these facts tip the scales in favor ofthe conclusion

that Henry's statement was not involuntary."^*
The court's reasoning is less than compelling. Had Henry asked for an

attorney or not been Mirandized, his confession would have been inadmissible

as a matter ofwell-settled federal constitutional law.^^ What remains to support
admissibility is Henry's "average intelligence" and the absence of any "threats

or promises." Ifpolice deception truly "weighs heavily against the voluntariness

of the defendant's confession,"*^ it is difficult to understand why police telling
two separate lies during a short confession should be disregarded to support
admissibility. As the court reiterated in Henry, the State must prove beyond a
reasonable doubt that a confession was voluntarily given.*' This differs from the
federal constitutional requirement of voluntariness merely by a preponderance

of the evidence.*^ If the supreme court is serious about this heightened burden,

one might suspect it to find the scales tipped in favor of inadmissibility in some,
if not most, cases of police deception. Although the court relied on its opinion

in Light, Light does not discuss the "beyond a reasonable doubt" standard and

70. Id. at 664.

71. Id.

72. Id

73. 547N.E.2ci 1073 (Ind. 1989).

74. Henry, 738 N.E.2d at 664 (citing Light, 547 N.E.2d at 1079).

75. Id. (citing Brief of Appellant at 9) (omission in original).

76. Id

77. Id at 665.

78. Id

79. See, e.g., Edwards v. Arizona, 451 U.S. 477 (1981).

80. Henry, 738 N.E.2d at 665 (citing Heavrin v. State, 675 N.E.2d 1075, 1080 (Ind. 1996)).

81. Id at664.

82. Id. at 664 T\.\,5ee also Schumm, supra note 22, at 648-5 1

.



2002] CRIMINAL LAW 1357

was decided well before the court had adopted a consistent view on this

heightened requirement.

C. Waiver ofthe Right to Counsel

In Poynter v. State,^^ the supreme court granted transfer to address

inconsistencies in its prior opinions and those of the court of appeals regarding

the requirements for a valid waiver of the right to counsel before a defendant

elects self-representation. The defendant asserted, and the State agreed, that the
record must reflect that such a waiver is knowing, intelligent, and voluntary.^"*

However, the court in Poynter set out to define just what that standard means in
practice.

The court began by acknowledging the importance ofthe right at issue: "Of
all the rights that an accused person has, the right to be represented by counsel

is by far the most pervasive for it affects his ability to assert any other rights he
may have."*^ To protect this important right, the U.S. Supreme Court has long
held that a defendant who asserts his right to self-representation must be told of
the "dangers and disadvantages of self-representation,"*^ although there are no

prescribed "talking points" that the trial court must include in its advisement.*^

The trial court must make a "considered determination" that the waiver is
voluntary, knowing, and intelligent, a determination that is made "with the
awareness that the law indulges every reasonable presumption against a waiver

ofthis fundamental right."**

At issue in Poynter was whether a defendant's conduct in failing to hire
counsel, despite warnings and advisements by the trial court, constituted a valid

waiver. The court acknowledged that two of its prior cases had reached opposite

results, although the latter case did not overrule or even discuss the former one.*^

Seizing the opportunity to clarify this "inconsistent precedent," the court

considered the general standards from Supreme Court cases but then seemingly

adopted^° the more specific approach of the Seventh Circuit, which considers
four factors: "(1) the extent ofthe court's inquiry into the defendant's decision,

(2) other evidence in the record that establishes whether the defendant

understood the dangers and disadvantages of self-representation, (3) the

background and experience of the defendant, and (4) the context of the

83. 749 N.E.2(11 122 (Ind. 2001).

84. /^. at 1123.

85. Id at 1 125-26 (quoting United States v. Cronic, 466 U.S. 648, 654 (1984)).

86. Id. at 1 126 (quoting Faretta v. California, 422 U.S. 806, 835 (1975)).

87. Id

88. Id (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).

89. Id (citing Houston v. State, 553 N.E.2d 1 17 (Ind. 1990); Fitzgerald v. State, 257 N.E.2d

305 (Ind. 1970)).

90. The court never explicitly adopts the test but states that it 'Tind[s] this approach helpful

in analyzing waiver of the Sixth Amendment right to counsel under the facts and circumstances of

waiver by conduct cases." Id. at 1 128.



1358 INDIANA LAW REVIEW [Vol. 35:1347

defendant's decision to proceed pro se."^^

Applying the factors to Poynter's case, the court noted that the trial court had
advised him of his trial rights and the procedural outcome of failing to secure
counsel but did not advise him of the "dangers and disadvantages of self-
representation," a factor that "weighs heavily against finding a knowing and
intelligent waiver."^^ The defendant's background and unknown experience with
the criminal justice system pointed in neither direction, and his conduct of
choosing to go to work instead of hiring an attorney did not result in delays or
appear to manipulate the process.^^ Weighing these factors, the court concluded
that the record did not support a finding of a knowing and intelligent waiver.^*

Poynter is significant not only because it clarified contradictory precedent

but it also took a seemingly clear path that should be relatively easy to apply in

future cases. Indeed, less than three months after Poynter was decided, the court
of appeals applied it in Slayton v. State^^^ a case in which the trial court "made
mention ofcounsel" at three pretrial hearings but never advised the defendant of

disadvantages ofself-representation. Because the other factors did not weigh in

either direction, the court in Slayton similarly concluded that there had not been

a knowing and intelligent waiver of counsel.^^
In both Poynter and Slayton, the trial court failed to advise the defendant of

the dangers and disadvantages of self-representation, which proved to be the

dispositive factor in finding the purported waivers ofcounsel invalid. Therefore,

the lingering question for future cases is what form that advisement should take

and whether a cursory advisement will be assailable on appeal.

D. Statute ofLimitations

In Wallace v. State,^^ the supreme court granted transfer to address the

applicability of the statute of limitations in a child molestation case. The
defendant's two daughters testified that he had molested them during a sixteen-

month period beginning in the summer of 1988.'* However, for reasons
undisclosed in the record, the State did not file charges—^four C felony counts of
child molestation—until March of 1998.^' Although at the time of the offense
the applicable statute of limitations for a Class C felony was five years, Wallace
did not object to the charges on the basis that the statute of limitations had

expired, but rather proceeded to trial by jury and was convicted of three of the

91. Id. at 1 127-28 (quoting United States v. Hoskins, 243 F.3d 407, 410 (7th Cir. 2001)).

92. Mat 1128.
93. Id.

94. Id

95. 755 N.E.2d 232, 236 (Ind. Ct. App.2001).

96. Id at 237.

97. 753 N.E.2d 568 (Ind. 2001).

98. Id at 569.

99. Id



2002] CRIMINAL LAW 1359

counts.
'^°

Repeating well-established legal precepts, Justice Rucker, writing for the

three-justice majority, observed that the applicable statute of limitations is "that

which was in effect at the time the prosecution was initiated,"'^' and "the statute
to be applied when arriving at a proper criminal penalty is that which was in
effect at the time the crime was committed.'"^^ Because a "statute of limitations
might be construed narrowly and in a light most favorable to the accused," the

court rejected the State's argument that the extended statute of limitations from

another subsection ofthe statute should apply to Wallace's crimes. '^^ Reiterating

the primary purpose ofthe statute oflimitation as ensuring against the "inevitable

prejudice and injustice to a defendant that a delay in prosecution creates,"'^ the

supreme court reversed Wallace's convictions because the State had not filed
charges within the applicable five-year limitation period.

'°^

Justice Boehm, joined by Justice Dickson in dissent, did not disagree with
anything in the majority's opinion, save its conclusion. Relying on Indiana Trial

Rule 8(c) and federal precedent, the dissent opined that defendants should be

required to raise a statute of limitations defense in a pretrial motion or forfeit the

claim on appeal.'^ It reasoned that this view was also consistent with policy
considerations: "A criminal defendant, like a civil defendant, should not be able
to sit on a statute of limitations defense until long after trial is completed. The
result is a waste oftaxpayer funds and court time."'^' Moreover, because many
other "more fundamental" constitutional and statutory rights may be waived by
criminal defendants either affirmatively or by failure to assert them, the dissent

found no reason to accord more favorable treatment to a statute of limitations
defense.

'"«

Although the dissent's view is arguably the better reasoned one, it correctly

recognized its practical limitations. "In this case, affirming the conviction

obviously sets the defendant up for an ineffective assistance of counsel claim,

and the end result ofmy view may be the same as the majority's."'^ Moreover,
it is questionable whether the dissent's approach would actually save judicial
resources. It is unlikely that competent defense counsel, who realizes that raising
a statute of limitations defense in a pretrial motion would lead to immediate
dismissal ofthe charges, would nevertheless choose to proceed to trial to attempt
to secure an acquittal with the knowledge that, should this effort fail, a guilty
verdict would be set aside on appeal when the statute of limitations issue was

100. Id.

101. Id.

102. Id

103. Mat 570.
104. Id (quoting Kifer v. State, 740 N.E.2d 586, 587 (Ind. Ct. App. 2000)).

105. Mat 570-71.
106. M. at 571-72 (Boehm, J., dissenting).

1 07. Id. at 572 (Boehm, J., dissenting).

108. Id.

109. Id.



1360 INDIANA LAW REVIEW [Vol. 35:1347

raised. A defendant charged with any crime—most of all child molesting as in
Wallace—would certainly prefer the quickest resolution of the case; lingering
charges and an eventual trial are likely to take a serious toll on the defendant and
his reputation in the community. It is hard to imagine a scenario where failing
to raise the defense would be tactical, but rather, it would seem to be a classic
example of deficient performance, which, when coupled with the obvious
prejudice, constitutes an archetypical case of ineffective assistance.

E. Voluntary Intoxication

In 1996, the U.S. Supreme Court held in Montana v. Egelhoff^^^ that,
consistent with the Due Process Clause, a state could prohibit a defendant from
offering evidence ofvoluntary intoxication to negate the requisite mens rea of a
criminal offense. Although the Indiana Supreme Court had struck down a
legislative attempt to limit the use ofvoluntary intoxication as a defense in Terry

V. State^ ' Mn 1 984, after Egelhojfthe court noted that the Terry doctrine was "no
longer good law"'*^ insofar as it was grounded in the federal constitutional
guarantee ofdue process. In response to Egelhojf, the General Assembly in 1 997
enacted Indiana Code section 35-41-2-5, which provides: "Intoxication is not a
defense in a prosecution for an offense and may not be taken into consideration
in determining the existence of a mental state that is an element of the

offense . . .
."'''

In Sanchez v. State, ^^^ the Indiana Supreme Court granted transfer to address
whether the 1 997 statute violated various provisions ofthe Indiana Constitution.

In addressing the claimed violation ofarticle I, section 1 2 (the due course of law

provision), the court reiterated that the first sentence of that provision applies

only in the civil context,''^ but held that the second sentence, although not

identical with the federal right to due process, included the "basic concepts of

fairness that are frequently identified with 'due process' in the federal

constitution.""^ However, recognizing that the General Assembly "redefined the

mens rea element in Indiana to render irrelevant" evidence of voluntary
intoxication, the court found no due course of law violation."^ The court also
held that the statute did not violate article I, section 13 because that provision

"does not require that any specific claim of a defense be recognized by Indiana

law," and "[i]fthe substantive law renders the evidence irrelevant . . . there is no

110. 518 U.S. 37(1996).

1 1 1. 465 N.E.2d 1085 (Ind. 1984).

1 1 2. State V. Van Cleave, 674 N.E.2d 1 293, 1 302 n. 1 5 (Ind. 1 996).

113. Ind. Code §35-41-2-5 (1998).

1 1 4. 749 N.E.2d 509 (Ind. 2001 ).

115. Mat 514.
116. Id. at 515. The second sentence provides: "Justice shall be administered freely and

without purchase; completely, and without denial; speedily, and without delay." Ind. Const, art.

U§12.
117. 5a«c^ez, 749 N.E.2d at 515.



2002] CRIMINAL LAW 1361

right under Article I, Section 13 to present it.""* In addition, the court found no

violation ofthejury's right to determine the law and facts under article I, section

19 because "[t]he voluntary intoxication instruction does not unconstitutionally

compel the jury to make a finding of intent.""' Finally, the court found no
violation of the equal privileges and immunities clause of article I, section 23

because the statute makes distinctions that are rationally related to legislative
goals and a permissible balancing of the competing interests involved.

'^^

Justice Sullivan, joined by Justice Rucker, concurred in the result, reasoning

that the "principles underlying Terry remain sufficiently viable that we must
adhere to this well-settled precedent," but nevertheless reached the same result
because the erroneous reftisal of the intoxication instruction was harmless
beyond a reasonable doubt.

'^'

F. Jury Instructions on Flightfrom Crime Scene

Sorting though a decade of wishy-washy pronouncements on flight

instructions, the supreme court in Dill v. State^^^ finally resolved long-standing

confusion by holding that it is per se erroneous for trial courts to give an

instruction that "flight and other actions calculated to hide a crime, though not

proof of guilt, are evidence of consciousness of guilt and are circumstances

which may be considered by [the jury] along with other evidence."'^^
The confusion began with BeUmore v. State,^^^ in which the supreme court

found that the standard flight instruction did not violate the defendant's right to

due process. However, the court recommended against future use of the
instruction without articulating the reasons for its recommendation or otherwise

providing guidance for alternative instructions.'^^ Post-Bellmore cases found no

error in the giving of flight instructions but repeated the cautionary warning

against such instructions.'^^ "Since BeUmore, we have repeatedly noted this
recommendation [for disuse] but have not actually applied it to find error."'^^

In DilU the defendant objected to the instruction on several grounds,

including the recommendation from BeUmore and its progeny, as well as its
engendering of confusion and focusing of excessive attention on evidence of

flight.'^* "Implementing [its] directive in BeUmore,'' the Dill court found that the

trial court erred in giving the flight instruction because it was confusing; it

118. /</. at 520-21.

119. Id.2^52\.

120. Id 2X522.

121. Id. 2X 527 (Sullivan, J., concurring) (emphasis in original).

122. 741 N.E.2d 1230 (Ind. 2001).

123. /^. at 1231.

124. 602N.E.2dlll(Ind. 1992).

125. Z)///,741N.E.2datl231.

126. /t/. at 1231-32.

127. /flf. atl231.

128. /cf. at 1232.



1362 INDIANA LAW REVIEW [Vol. 35:1347

unnecessarily emphasized certain evidence; and it had great potential to mislead

the jury.^^^ Nevertheless, because the conviction was clearly sustained by the
evidence and the jury could not properly have found otherwise, the court found

the erroneous instruction to be harmless error.
'^^

ChiefJustice Shepard dissented, reasoning that putting flight instructions on
"the extremely short list" of completely prohibited instructions runs counter to

Indiana's trial practice, which includes "scores of instructions about particular
aspects ofvarious causes ofaction, given regularly by trial judges and regularly

approved on appeal."'^ ^ In addition, the dissent made clear that the majority's
new rule was a minority view, citing numerous state supreme court and federal
circuit court opinions that have upheld properly worded flight instructions
supported by sufficient evidence. '^^ ChiefJustice Shepard concluded his dissent

by noting that in the future he "would not be surprised to see defense counsel
now begin to tender their own instructions on flight as a way to safeguard their
clients against the possibility that the prosecutor might oversell the matter during

final argument."'^^

The majority's opinion in Dill, although likely foreclosing the State from
tendering or trial courts from giving flight instructions in the future, seems to

give the green light to the State admitting evidence of flight at trial and arguing

its significance in closing argument.^''* Without an instruction that places this

evidence in some perspective, it seems entirely possible that ajury oflaypersons
untrained in the law will attach greater weight to the defendant's flight than it

would if a proper, carefully-worded instruction had been given. Thus, as the
dissent noted, defense counsel likely will want to craft an instruction that limits

the significance of flight evidence in those cases where the trial court deems it
admissible. Trial judges would seemingly be willing to give such an instruction
when supported by the evidence, in part, because if tendered by the defendant,
it would foreclose any claim of error on appeal. Refusing such an instruction,
however, could present a viable issue for appeal, especially if the defendant

could show that the prosecutor was overzealous in arguing the significance of
flight in closing argument or that the evidence of flight admitted at trial was not
relevant—issues that are likely to be fleshed out in ftiture cases, the sorting out
of which "should prove challenging."^^^

G. Limits on Retrials After Hung Juries

In Sivels v. State, ^^^ the supreme court addressed limitations on retrials after

129. Id.

130. Mat 1233.
131. /flf. at 1 234 (Shepard, C.J., dissenting).

132. Id. at 1234-35 (Shepard, C.J., dissenting).

133. Id. at 1235 (Shepard, C.J., dissenting).

134. See id. si mi.
135. Id. at 1235 (Shepard, C.J., dissenting).

136. 741 N.E.2d 1 197 (Ind. 2001).



2002] CRIMINAL LAW 1363

repeated hung juries. In that case, the defendant was charged with murder,
felony murder, and robbery. He was acquitted ofthe felony murder and robbery
charges in his first trial, but the jury could not reach a unanimous verdict on the

murder charge."^ A second trial also resulted in a mistrial due to a hung jury,
and the defendant then filed a motion to dismiss, alleging that the multiple

prosecutions violated his right to due process. ^^* The trial court agreed with

Sivels that it had the inherent authority to dismiss the case on this basis, but

denied the motion on its merits.
'^^

On direct appeal the supreme court agreed that the trial court possessed this
authority to dismiss the case. After reviewing cases from several other

jurisdictions, the court noted that "[w]hile differentjurisdictions refer to different

sources of the trial court's authority to dismiss after multiple mistrials, the

majority of the appellate courts rely on precepts of fundamental fairness and

notions of fair play and substantial justice."'*^

The supreme court proceeded to adopt guidelines for future use when trial
courts are confronted with such a challenge. These include:

(1) the seriousness and circumstances of the charged offense; (2) the

extent of harm resulting from the offense; (3) the evidence of guilt and

its admissibility at trial; (4) the likelihood ofnew or additional evidence
at trial or retrial; (5) the defendant's history, character, and condition; (6)
the length of any pretrial incarceration or any incarceration for related

or similar offenses; (7) the purpose and effect of imposing a sentence

authorized by the offense; (8) the impact of dismissal on public

confidence in the judicial system or on the safety and welfare of the

community in the event the defendant is guilty; (9) the existence of any
misconduct by law enforcement personnel in the investigation, arrest, or

prosecution of the defendant; (10) the existence of any prejudice to

defendant as the result of passage of time; (11) the attitude of the

complainant or victim with respect to dismissal ofthe case; and (12) any

other relevant fact indicating thatjudgment ofconviction would serve no

useftil purpose.'"*'

In addition, the court should consider "the number of prior mistrials and the
outcome of the juries' deliberations, as known" and "the trial court's own
evaluation of the relative strength of each party's case . . . ."''*^ The court
declined to adopt a categorical rule limiting retrials to a specific number but
instead held that trial courts are in the best position to weigh the relevant factors

and that abuse ofdiscretion is the appropriate standard for appellate review ofthe

137. Id. at 1 198-99. Several months earlier, a jury was selected and dismissed (before being

sworn) because of a continuance. Id. at 1 198.

138. Id.

139. /c/. at 1202.

140. Mat 1201.
141. Id (quoting Stale v. Sauve, 666 A.2d 1 164, 1 168 (Vt. 1995) (citations omitted)).

142. Id (quoting State v. Abbati, 493 A.2d 513, 521-22 (N.J. 1985)).



1364 INDIANA LAW REVIEW [Vol. 35:1347

trial court's decision.
^^^

In reviewing the relevant factors in Sivels, the supreme court noted that the
charged offense involved the beating and shooting ofan unarmed man during the
commission ofa robbery.'^ The first two trials ended injuries that voted 7-5 and
9-3 in favor of acquittal, and the defendant had been incarcerated without bond
for two and a half years. '"^^ Perhaps most significantly, however, the trial court
had indicated its own evaluation ofthe strength ofthe State's case and its belief
that Sivels had committed the charged offense.''*^ Based on these considerations,

the supreme court found no abuse of discretion in allowing the State to retry its

case for a third time.'"*^

Although a fifteen-factor test may appear at first blush to be inadvisable, the
test adopted by the supreme court in Sivels will likely be easily applied in future

cases because, although it includes all the relevant considerations, generally only

few will apply in a given case. More importantly, the supreme court properly
gives the authority to dismiss charges to the trial court, whose time and docket
is at the mercy of the State's repeated retrials in such cases. If repeated retrials
result in hung juries and the trial court finds the State's evidence less than

compelling, one would expect most trial judges to exercise the authority to
dismiss a case. However, ifthe trial court declines to do so, the issue is now one
that can be easily and meaningfully raised and reviewed on appeal.

K Appellate Review ofSentences
This year's survey concludes, as did last year's, with a review ofthe morass

of appellate sentence review. As predicted, the constitutional amendment that
eliminated the mandatory jurisdiction of the supreme court in all but death

penalty and life without parole cases*^^ has, when combined with the court of
appeals' new membership, led to the court of appeals' newfound role as the
primary arbiter of appel late sentence review.

'^^

Although several court ofappeals opinions during the survey period reduced

sentences as being manifestly unreasonable, the supreme court's newly-

discretionary docket not surprisingly led to only two sentence reductions: one
on direct appeal and one on transfer. On direct appeal, the supreme court, in
Winn V. State,^^^ took the unusual action of finding that a thirty-year habitual
offender enhancement added to a fifty-year sentence for rape was manifestly

143. /^. at 1202.

144. Id

145. Id

146. Id

147. Id

1 48. The constitutional amendment limited mandatory jurisdiction to death penalty cases but

the supreme court retained jurisdiction for life without parole cases by rule. See IND. Appellate

Rule 4(A)(1)(a).

1 49. Schumm, supra note 22, at 669.

150. 748 N.E.2d 352, 360 (Ind. 2001).



2002] CRIMINAL LAW 1365

unreasonable. Winn is unusual because the defendant did not challenge, and the

court did not evaluate, the aggregate sentence as being manifestly unreasonable,

as in most previous cases addressing such claims. Rather, the defendant

requested that the habitual offender enhancement be attached to a crime other

than the rape count and that his enhancement therefore be reduced from thirty to

ten years because the two prior felony convictions that formed the basis for the

enhancement were non-violent Class D felonies.'^' In addressing this claim, the
court summarized the relevant factors ofthe nature ofthe offense (the defendant

confronted the victim with a deadly weapon, struck her, threatened her, and

required her to submit to more than one sexual act) and the character of the
offender (an Operation Desert Storm veteran with a non-violent criminal history

ofmisdemeanor or D felony offenses).'" In light ofthese considerations and the
trial court's imposition ofthe maximum sentences for rape and criminal deviate
conduct, the court concluded that imposing the maximum habitual enhancement
by attaching it to the rape conviction was manifestly unreasonable and therefore

ordered that the enhancement be reduced to ten years and attached to one ofthe

class B or C felony counts, thereby reducing the aggregate sentence by twenty
years.'"

In Walker v. State,^^^ the supreme court granted transfer to address a claim

that the "aggregate sentence" of eighty years for two counts of A felony child
molesting was manifestly unreasonable.'" The court began by tracing the origins
of article VII, section 4 ofthe Indiana Constitution, noting that the framers "had

in mind the sort of sentencing revision conducted by the Court of Criminal
Appeals in England.'"^^ In England, the appellate court

shall, if they think a different sentence should have been passed, quash

the sentence passed at trial, and pass such other sentence warranted in

law by the verdict (whether more or less severe) in substitution therefore
as they think ought to have been passed, and in any other case shall

dismiss the appeal.
'^^

Despite having its origins in such a liberal standard, Indiana appellate courts have

exercised their responsibility "with great restraint, recognizing the special

expertise of the trial bench in making sentencing decisions."'^* Although the
deferential standard ofreview "means that trial court decisions will be affirmed
on the great majority ofoccasions," the appellate courts should revise sentences
when they are "manifestly unreasonable in light ofthe nature ofthe offense and

151. Id

152. /^. at 361.

153. Id

154. 747 N.E.2d 536 (Ind. 2001).

155. Id Bi 53^.

156. /^. at 537-38.

1 57. Id. at 538 (quoting Criminal Appeal Act, 1907, 7 Edw. 7, ch. 23 § 4(3) (Eng.)).

158. Id



1366 INDIANA LAW REVIEW [Vol. 35:1347

the character of the offender."'^^

In applying the standard to Walker's case, the supreme court noted that
although he did not have a history of criminal behavior, he had molested the
same child twice without physical injury, was on probation, and had fled the
jurisdiction. '^° Weighing these considerations the court found that "this is some
distance from being a worst offense or the most culpable offender" and ordered
Walker's two forty-year sentences to be served concurrently.'^'

Following Walker or other precedent, the court ofappeals reduced sentences

as being manifestly unreasonable in five cases during the survey period.'"

Relying heavily on Walker, the court of appeals in Perry v. State^^^ held that
consecutive sentences for dealing and conspiracy to deal cocaine were manifestly
unreasonable because Perry's prior felony convictions were used as the
aggravating circumstance to justify consecutive sentences and formed the basis

ofthe habitual offender charge.'^ Accordingly, the case was remanded for the
imposition of concurrent sentences. '^^ In a similar vein, in Simmons v. State^^^
the court ordered a reduction ofthe defendant's maximum fifty-year sentence for
Class A felony child molesting to forty years because the defendant's "criminal
history was not lengthy, did not demonstrate a tendency toward violence or a
propensity to commit sexual acts, and was the only proper aggravating factor
considered by the trial court . . . ."'^^

In Love v. State,^^^ the court of appeals reduced the defendant's maximum
sentence of fifty years for possession with intent to deliver cocaine to the

presumptive term ofthirty years. The court based its decision on the defendant's
lack of a violent criminal history and his youthful age of nineteen: "In

sentencing Love to fifty years' imprisonment, the trial court has effectively
determined that Love is beyond rehabilitation at age nineteen.'"^^

In contrast, in Peckinpaugh v. State^^^ the court reduced a sentence for

159. Id.

160. Id.

161. Id

162. This number does not include Mann v. State, 742 N.E.2d 1025 (Ind. Ct. App.), trans,

denied, 753 N.E.2d 13 (Ind. 2001), cited in Walker as an example of a sentence properly reduced

as manifestly unreasonable. Although Judge Baker noted in his dissent that he would have reduced

the sentence under the manifestly unreasonable doctrine, id. at 1028-29 (Baker, J., dissenting), the

majority relied on procedural sentencing doctrine in remanding "to the sentencing court with

instructions to impose the forty-five year sentence it deemed appropriate after identifying and

balancing the aggravating and mitigating circumstances." Id. at 1028.

163. 751 N.E.2d 306 (Ind. Ct. App. 2001).

164. IddX^W.

165. Id

166. 746 N.E.2d 81 (Ind. Ct. App.), trans, denied, 761 N.E.2d (Ind. 2001).

167. Mat 93.
168. 741 N.E.2d 789 (Ind. Ct. App. 2001).

169. /^. at 795.

170. 743 N.E.2d 1238 (Ind. Ct. App. 2001).



2002] CRIMINAL LAW 1367

burglary from the maximum of twenty years to the presumptive sentence often
because of the nature of the offense. The court found the crime not to be a

"particularly egregious example" of burglary and noted that no injury was

attempted against the occupant and no damage was caused to the dwelling.'^'

The court, however, upheld the maximum sentence of eight years for stalking
because it was based on repeated harassment in the face of several warnings by

law enforcement.'^^ The court also affirmed the decision to order the sentences

served consecutively because of the defendant's need for an extended

incarceration in a penal facility.
'^^

Finally, in Biehl v. State^^^ the court of appeals broke new ground in finding
a presumptive sentence to be manifestly unreasonable. Biehl, unlike the

previously-discussed cases, presented both a mitigated nature ofthe offense and

a sympathetic character ofthe offender. As to the nature ofthe offense, the court
noted that the victims had to some extent sought out the defendant when they
entered the bam where he was living, threw bricks and boards at him, and refused
to leave when asked. *^^ As to the character of the offender, the court noted that
the defendant, who was thirty-five years old, had no criminal history and had
been suffering from a longstanding and severe mental illness.'^^ Weighing these

considerations, the court found that the presumptive sentence ofthirty years for

voluntary manslaughter was manifestly unreasonable and ordered the sentence
to be reduced to the minimum oftwenty years. '^^ Not only did the supreme court
deny the State's petition for transfer in Biehl, it also cited the case with approval

several months later in Walker
^^

Although substantive sentence review in Indiana continues to challenge the

appellate courts in large part because the unique nature of sentencing decisions

which defy easy quantification, these opinions suggest a recognition of the
important goal ofconsistency that has not been a constant feature in prior years.

As highlighted in many of these opinions, the appellate courts seem especially
concerned by consecutive sentences and appear more inclined to reduce a
sentence when a defendant is given enhanced sentences for more than one
offense and ordered to serve the counts consecutively, as in Walker and Perry.

The Winn opinion also suggests that the same principle may begin to be applied
to habitual offender cases; although the habitual offender enhancement is not a

separate charge, it nevertheless represents the same sort of "piling on" as in
consecutive sentencing cases. Winn also suggests somewhat ofa departure from
the usual considerations by looking at the predicate offenses that formed the

basis of the habitual offender charge instead of the aggregate sentence.

171. /f/. at 1243.

172. Mat 1243-44.
173. /t^. at 1244.

174. 738 N.E.2d 337 (Ind. Ct. App. 2000), trans, denied, 753 N.E.2d 3 (Ind. 2001).

175. Mat 339.
176. /flf. at 339-40.

177. Mat 341.
1 78. See Walker v. State, 747 N.E.2d 536, 538 (Ind. 2001).



1368 INDIANA LAW REVIEW [Vol. 35:1347

Beyond these limitations, the remaining cases suggest a greater appreciation
and depth of review for the relevant calculus of the "nature of the offense" and

"character of the offender." In Peckinpaugh the court considered the specifics

of the burglary offense and found that it did not call for a sentence beyond the
presumptive. However, analysis of "nature ofthe offense" represents only half

ofthe equation, and most cases have turned in larger part on the "character ofthe
offender." The most salient attributes, as evidenced by the cases decided during
the survey period, appear to be a lack of or minimal criminal history, a
defendant's youthful age, and long-standing mental illness.

Biehl is perhaps the most significant ofthese opinions because it represents
the first successful challenge to a presumptive sentence. Previously, most

successful challenges have been to sentences at or near the maximum and have
led to reductions to the presumptive sentence (or above). The court of appeals'
opinion in BiehU and the supreme court's later approval of it, makes clear that

any sentence may be successfully challenged under the manifestly unreasonable
doctrine. Although many, if not most, challenges to the presumptive sentence

will likely prove unfruitful, a particularly mitigated nature of the offense or

sympathetic character of the offender could lead to a reduction. However,

reduction to the minimum sentence as in Biehl yjo\x\d appear unlikely unless both
factors are particularly strong.

In short, both the supreme court and court of appeals issued opinions that

have begun to shape a landscape for consistency in substantive sentencing

challenges. Many of the court of appeals' opinions relied heavily on and
reconciled themselves with existing authority. Although these decisions have not

taken the form of explicit sentencing principles, these recent cases represent a

useful and large step in the direction of consistency in sentencing.