Indiana Law Review Recent Developments in Indiana Criminal Law and Procedure Joel M. Schumm* The legislature and Indiana's appellate courts confronted several significant issues during the survey period October 1, 2008, to September 30, 2009. The General Assembly created new crimes and altered penalties for existing crimes, while the Indiana Supreme Court and Indiana Court of Appeals addressed a variety of issues ranging from the traditional fare of sentencing, sufficiency of evidence, and speedy trials, to more novel and far-reaching claims involving the sex offender registry and the propriety ofAnders briefs. I. Legislative Developments Passing a budget in the midst of economic difficulty dominated the General Assembly's long session in 2009.' A special session was required in June to complete the process,^ but surprisingly little attention was given to changes in criminal statutes that could have positively affected the budget. Rather, the legislature added new crimes and enhanced existing penalties, which likely means the need for additional prison space in the future. A. New Offenses As technology and the times change, so do the ways to commit crimes. The 2009 General Assembly addressed this evolving criminal behavior by enacting several new criminal offenses. Among the new offenses created by the General Assembly, a person who "knowingly or intentionally obtains, possesses, transfers, or uses the synthetic identifying information" commits a Class D felony.^ Synthetic identifying information is defined as information that identifies: "(1) a false or fictitious person; (2) a person other than the person who is using the information; or (3) a combination ofpersons described under subdivisions (1) and (2).'"^ The offense is a Class C felony if the information comes from more than 100 persons or the fair market value of the harm exceeds $50,000.^ The statute exempts minors using fake identification to attempt to buy alcohol or tobacco;^ however, the State may prosecute them under the separate statute criminalizing * Clinical Professor ofLaw, Indiana University School ofLaw—Indianapolis. B.A., 1 992, Ohio Wesleyan University. M.A., 1994, University ofCincinnati. J.D., 1998, Indiana University School of Law—Indianapolis. 1 . Matthew TuUy, Let 's Hope This Is the EndofExcruciatinglyBadSession, Indianapolis Star, June 30, 2009, at Al. 2 . Mary Beth Schneider & Bill Ruthhart, BudgetBrings Good, BadNewsfor State Schools, Indianapolis Star, July 1, 2009, at Al . 3. IND. Code § 35-43-5-3.8(a) (Supp. 2009). 4. Id § 35-43-5- l(r). 5. Id § 35-43-5-3.8(b). 6. Id § 35-43-5-3.8(c). 692 INDIANA LAW REVIEW [Vol. 43:691 the use of false information to obtain alcohol as a Class C misdemeanor.^ The General Assembly also created new offenses for computer merchandise hoarding^ and the unlawful distribution of a hoarding program,^ both Class A misdemeanors.'^ It has long been a crime to impersonate a public servant or police officer/' but Indiana now has a separate crime for those who manufacture or sell police or fire insignia.'^" The offense begins as a misdemeanor but may be charged as a felony if the person knows or intends the badge to be used to commit impersonation of a public servant.'^ Although the age of consent for sexual relations in Indiana is generally sixteen/"^ the child seduction statute criminalizes sex with children who are sixteen and seventeen when the adult is in a relationship of special trust, such as a teacher or custodian.'^ The statute was broadened in 2009 to include persons employed by charter schools, special education cooperatives, and those otherwise affiliated with schools or cooperatives when the person: (1) occupies a position of trust with the student, (2) provides care or supervision to the student, and (3) is at least four years older than the student.'^ The statute also criminalizes sex between children sixteen or seventeen years old and military recruiters who are attempting to enlist them.'^ Finally, although not a new offense, the assisting a criminal statute was clarified, and perhaps broadened, by adding a new section on defenses: (b) It is not a defense to a prosecution under this section that the person assisted: (1) has not been prosecuted for the offense; (2) has not been convicted of the offense; or (3) has been acquitted of the offense by reason of insanity. However, the acquittal of the person assisted for other reasons may be a defense.'^ 7. Id. § 7.1-5-7-l(a). 8. Id. § 35-43-2-3(c). 9. Id § 35-43-2-3(d). 10. Id § 35-43-2-3(c), (d). 11. IND. Code § 35-44-2-3 (2008). 12. iND. Code § 35-44-2-5 (Supp. 2009). 13. Id § 35-44-2-5(a), (b). 14. iND. Code § 35-42-4-9(a) (2008). 15. iND. Code § 35-42-4-7 (Supp. 2009). 16. See /J. § 35-42-4-7(d)(3). 17. M § 35-42-4-7(k)(2)(B). The term military recruiter is defined in subsection (f). See id. § 35-42-4-7(0- 18. Id § 35-44-3-2(b). 2010] CRIMINAL LAW 693 B. Enhanced Penalties In addition to creating new crimes and expanding existing ones, the General Assembly also enhanced penalties for several crimes. A first offense for animal cruelty is now a Class A, instead of Class B, misdemeanor; a second unrelated offense is a Class D felony.'^ A second, unrelated animal cruelty offense in conjunction with the offense ofattending a fight involving animals is now a Class D felony instead of a Class A misdemeanor.^^ The legislature amended the trafficking with an inmate statute to increase the penalty from a Class A misdemeanor to a Class C felony if the item trafficked was a cellular phone.^' Identity deception remains a D felony in most instances, but a parent's commission of identity deception against his or her child is now a Class C felony.^^ Finally, in response to a high profile bank robbery in which a bank teller's twin fetuses were killed,^^ the legislature enhanced the penalty for feticide from a Class C to a Class B felony.^"* II. Significant Cases The Indiana Supreme Court and Indiana Court of Appeals addressed a wide range ofissues that impact criminal cases from their inception to their conclusion. This section attempts to summarize the most significant of these decisions and offer some observations about the likely fiiture impact of the decisions. A. Lab Reports and the Confrontation Clause In terms of breadth and the number of cases affected, the most significant opinion during the survey period is Melendez-Diaz v. Massachusetts.^^ There, the U.S. Supreme Court made clear that lab reports prepared for use in criminal prosecutions fall within the "core class oftestimonial statements" protected by the Confrontation Clause.^^ Such reports are inadmissible at trial "[a]bsent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them."^^ Lab reports have long been crucial to proving drug and other cases with ease and without the need for live expert testimony. In the wake of Melendez-Diaz, prosecutors are seemingly required to produce a witness instead of a report. The 19. Id § 35-46-3-7. 20. Id § 35-46-3-10. 21. Id § 35-44-3-9(d)(3). 22. Id § 35-43-5-3.5(b)(3)(A). 23. Jon Murray, Legislators Seek Longer Sentencefor Killing Fetus, INDIANAPOLIS STAR, Feb. 1,2009, at Al. 24. IND. Code §35-42-1-6. 25. 129 S. Ct. 2527 (2009). 26. Mat 253 1-32. 27. Id. at 2532 (emphasis in original) (citing Crawford v. Washington, 541 U.S. 36, 54 (2004)). 694 INDIANA LAW REVIEW [Vol. 43:691 executive director of the National District Attorneys Association described the decision as "a train wreck in the making."^^ As he put it: "The court is saying you can't submit an affidavit saying that the cocaine is cocaine. The criminalist must be there to testify the cocaine is cocaine. Particularly in rural states and in smaller communities, this is going to be a major problem."^^ Within weeks, the Indiana Supreme Court addressed Melendez-Diaz, albeit largely on the more nuanced issue ofwhich witness the State must call. In Pendergrass v. State,^^ the State called a DNA laboratory supervisor instead of the technician.^' The majority found this sufficient based on language from Melendez-Diaz, explaining that the right to confrontation "'does not mean that everyone who laid hands on the evidence must be called,'" which it concluded "leaves discretion with the prosecution on which evidence to present."^^ "The laboratory supervisor who took the stand did have a direct part in the process by personally checking [the technician's] test results," the majority reasoned.^^ On the same day the court decided Pendergrass, however, the court denied transfer in Jackson v. State,^"^ which held that calling a supervisor was insufficient because he had performed none of the tests and only the technician could testify "whether she correctly followed each step in the testing process."^^ Jackson is difficult to reconcile with the majority opinion in Pendergrass. Rather, the Pendergrass dissent (by Justice Rucker, joined by Justice Boehm) offers a stronger argument and is consistent with Jackson: Although a supervisor might be able to testify to her charge's general competence or honesty, this is no substitute for a jury's first-hand observations of the analyst that performs a given procedure; and a supervisor's initials are no substitute for an analyst's opportunity to carefully consider, under oath, the veracity of her results.^^ Thus, if the State calls a technician instead of a supervisor, it may avoid the uncertainty of a reversal if the specific facts are closer to Jackson than to Pendergrass. This construction is seemingly the safer course, especially if the Pendergrass approach does not withstand later U.S. Supreme Court review. 28. See David G. Savage, Court Ruling Shakes Up Criminal Trials, L.A. TIMES, July 26, 2009, at A3. 29. See id 30. 913 N.E.2d 703 (Ind. 2009). 31. Id at 704. 32. Id. at 707 (quoting Melendez-Diaz, 129 S. Ct. at 2532 n.l). 33. Id 34. 891 N.E.2d 657 (Ind. Ct. App. 2008), trans, denied, 2009 Ind. LEXIS 1323 (Ind. Sept. 24, 2009). 35. /J. at 661. 36. Pendergrass, 913 N.E.2d at 71 1 (Rucker, J., dissenting). 2010] CRIMINAL LAW 695 B. Guilty Pleas In many cases, there is little or no doubt that the State can prove the facts necessary to secure a conviction. Therefore, a guilty plea may seem like the only sensible solution. However, the defendant may have a strong claim to suppress evidence because the police violated his or her Fourth or Fifth Amendment rights in securing the evidence. In those cases, defense counsel will likely file a motion to suppress, and the trial court will enter a ruling after hearing evidence and arguments. If the trial court suppresses the evidence, the State may appeal as a matter of right if the ultimate effect is to preclude prosecution.^^ If the trial court does not suppress the evidence, the defendant may ask permission to pursue an interlocutory appeal.^^ For an interlocutory appeal to proceed, the trial court must certify the question, and the court of appeals must then accept the appeal. ^^ In recent years, the court of appeals has accepted little over a quarter of such appeals."*^ If an interlocutory appeal is not granted or not pursued, the defendant could plead guilty or go to trial. In light ofAlvey v. State,^^ going to trial is the only option. In Alvey, the defendant entered into a plea agreement that expressly reserved the right to appeal the denial of his motion to suppress."^^ The Indiana Supreme Court, however, held that provision invalid and unenforceable: "A trial court lacks the authority to allow defendants the right to appeal the denial of a motion to suppress evidence when a defendant enters a guilty plea, even where a plea agreement maintains that such an appeal is permitted. '"^^ The court reasoned that a guilty plea is a significant event and includes consequences—specifically, a conviction and inability to appeal."^ Allowing an appeal "would make settlements difficult to achieve and dramatically increase the caseload of the appellate courts.'"^^ The court concluded that defendants "cannot benefit from both the advantages of pleading guilty and the right to raise allegations of error with respect to pre-trial rulings. '"^^ Although the majority's opinion is well-grounded in precedent. Justice Boehm's dissent highlights many of the practical problems with the majority's 37. See IND. CODE § 35-38-4-2(5) (2008). 38. 5ee iND. App. R. 14(B). 39. Id 40. For example, 26 1 motions for permissive interlocutory appeal were filed with the Indiana Court ofAppeals in 2008. 2008 COURT OF APPEALS OF Indiana, Ann. Rep. 10 (2009), available at http://www.in.gov/judiciary/appeals/docs/2008report.pdf. Less than twenty-seven percent, or seventy, of these appeals were granted. Id. 41. 91 lN.E.2d 1248 (Ind. 2009). 42. Id at 1249. 43. Id at 1250 (citing Lineberry v. State, 747 N.E.2d 1 151, 1 155 (Ind. Ct. App. 2001)). 44. Id at 1249. 45. Id (citing Tumulty v. State, 666 N.E.2d 394, 396 (Ind. 1996)). 46. Mat 1251. 696 INDIANA LAW REVIEW [Vol. 43 :69 1 approach. Most notably, on the point ofjudicial economy, "the majority's refusal to permit a guilty plea reserving the right to appeal a denial will force the prosecution, the defendant and the court to go through the motions of a wholly unnecessary trial.'"*^ Several states and the federal judiciary allow such appeals,"^^ and those courts do not appear to be overwhelmed with appeals. Rather, the issue is one of timing—^will the appeal occur after a plea agreement or after a trial? Moreover, allowing plea agreements with a right to appeal "gives the defendant whatever benefit a guilty plea provides in sentencing. '"^^ Barring legislative action or a significant change in the membership of the Indiana Supreme Court, the issue appears settled. Thus, parties cannot make agreements reserving the right to appeal a suppression claim, and defense counsel must insist on a trial in order to preserve the suppression issue for appeal. Waiving the right to jury trial may be advisable, and a liberal use of stipulations could help with concerns for judicial economy. If a defendant simply wants to preserve a suppression claim and otherwise accepts responsibility for the offense, it remains to be seen what mitigating weight might be afforded at sentencing. Courts have held that an early guilty plea saves victims from going through a full- blown trial and conserves limited prosecutorial and judicial resources; therefore, it is a mitigating circumstance entitled to significant weight. ^^ In the same guilty-plea-means-finality vein, the Indiana Supreme Court in Norris v. State'^ held that a guilty plea could not be challenged on post-conviction relief based on newly discovered evidence.^^ The court reiterated that a guilty plea "conclusively establishes the fact of guilt, a prerequisite in Indiana for the imposition of criminal punishment."^^ Defendants know of their guilt when they enter a guilty plea, and upon the trial court's acceptance of that plea, the defendant waives the right to later present evidence of innocence.^"^ Justice Boehm, joined by Justice Rucker, concurred in a separate opinion. "Any system ofjustice must allow for correction of injustice based on clear and convincing evidence of innocence, even if the defendant can be said to have contributed to his own plight by pleading guilty."^^ Justice Boehm opined it was proper to "upset a guilty plea only where we have a very high degree of confidence that it was in fact incorrect,"^^ such as a claim of actual innocence supported by DNA evidence.^^ 47. Id. (Boehm, J., dissenting). 48. See id. 49. Id 50. See, e.g., Francis v. State, 817 N.E.2d 235, 237-38 (Ind. 2004). 51. 896 N.E.2d 1149 (Ind. 2008). 52. Mat 1152. 53. Id 54. Mat 1153. 55. Id. at 1 154 (Boehm, J., concurring). 56. Mat 1155. 57. Seeid.dXnSA. 20 1 0] CRIMINAL LAW 697 C Speedy Trials Under Criminal Rule 4 Indiana Criminal Procedure Rule 4 sets strict deadlines for bringing defendants to trial and has led to the reversal of convictions or discharge ofmany defendants over the years.^^ Although the rule makes clear it is the State's duty to bring a defendant to trial, exceptions have diminished, ifnot begun to swallow, the rule.^^ In Pelley v. State,^^ the State sought counseling records from a third party nearly a decade and a half after multiple murders for which the defendant had been recently charged.^^ The trial court quashed the subpoena, and a lengthy interlocutory appeal was pursued.^^ Pelley was later tried and convicted of the murders, but the court of appeals reversed, concluding that Criminal Rule 4(C) contains no exception for interlocutory appeals and that Pelley was not responsible for the delay.^^ The Indiana Supreme Court disagreed and reinstated the convictions.^"* It reasoned that the trial court proceedings had been stayed pending the interlocutory appeal, which rendered the trial court without jurisdiction to try the defendant.^^ The court emphasized that time is excluded from Criminal Rule 4 only when trial court proceedings are stayed, and the court noted that trial and appellate courts have discretion to deny stays when they are sought for inappropriate reasons or the issues involved are not critical to the case.^^ Although the records sought in Pelley were not critical to the case, the rule announced appeared to apply only prospectively.^^ Beyond the fairly uncommon scenario of stays and interlocutory appeals in Pelley, the court of appeals addressed the broader issue of proving a speedy trial violation in Gibson v. State,^^ where the defendant argued that the State failed to bring him to trial within one year as required by Criminal Rule 4(C).^^ Although 58. See generally Joel M. Schumm & James A. Garrard, Recent Developments in Criminal Law and Procedure, 33 IND. L. Rev. 1 197, 1215-20 (2000). 59. For example, the court ofappeals reiterated in Wilkins v. State, 901 N.E.2d 535 (Ind. Ct. App.), trans, denied, 915 N.E.2d 986 (Ind. 2009), that trial courts may make a finding of congestion, thus stopping the Criminal Rule 4 clock, without an assessment ofits docket to ensure a speedy trial. A defendant whose case is continued "has priority over another speedy trial whose trial had been previously scheduled on that date." Id. at 538 (quoting Bowers v. State, 717 N.E.2d 242, 245 (Ind. Ct. App. 1999)). 60. 901 N.E.2d 494 (Ind. 2009). 61. Mat 497-98. 62. Id 63. Id at 498 (citing Pelley v State, 883 N.E.2d 874, 885 (Ind. Ct. App. 2008)). 64. Id at 508. 65. Mat 499. 66. Id. at 500. 67. Id at 500, 508. 68. 910 N.E.2d 263 (Ind. Ct. App. 2009). 69. Id at 266. 698 INDIANA LAW REVIEW [Vol. 43 :69 1 the Chronological Case Summary (CCS) entries showed he was granted several continuances, the defendant demonstrated that those entries were not correct7° The "bench trial/status" hearings scheduled throughout the period were merely pre-trial conferences for plea negotiations and not trial dates7^ At another hearing, the prosecutor was not even present^^ The court reiterated the State's duty to bring a defendant to trial and found "no indication that Gibson ever did anything within the one-year period to prevent the State from bringing him to trial.'"' Gibson serves as a useful reminder to both trial judges and prosecutors ofthe importance of setting early trial dates and keeping carefril and accurate track of delays under Criminal Rule 4. Defendants do not have the duty to bring themselves to trial, and demonstrating a violation of the rule may be relatively easy with the use of transcripts and the CCS. D. Crime or Not a Crime? Practitioners and judges often view challenges to the sufficiency of the evidence as a losing cause. If a jury or judge finds a defendant guilty, the standard ofreview for reversing the conviction is a high hurdle to clear.^"* As the following cases demonstrate, though, Indiana's appellate courts will sometimes reverse convictions based upon insufficient evidence. These reversals sometimes suggest the issue is a legal one of broader applicability than the facts of the particular case. 1. Insufficient Evidence.—The appellate courts found insufficient evidence in cases involving the fairly common charges ofresisting law enforcement, public intoxication, and criminal recklessness, while similarly finding the same with seldom-charged cases of official misconduct and possession of more than three grams of ephedrine. Resisting law enforcement requires proof that a defendant "forcibly" resisted.^^ In several cases, courts have reversed convictions because the 70. Id. at 268. 71. Mat 267-68. 72. Id. at 267. 73. Mat 268. 74. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Upon a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of the witnesses, and respects the jury's exclusive province to weigh conflicting evidence. We have often emphasized that appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. Expressed another way, we have stated that appellate courts must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id. (internal citations and footnotes omitted). 75. Ind. Code § 35-44-3-3(a)(l) (2008). 20 1 0] CRIMINAL LAW 699 defendant's resistance was passive or otherwise did not involve force directed to the officer/^ In Graham v. State^^ the Indiana Supreme Court added to this string of reversals because the defendant's "refusing to present [his] arms for cuffing" did not constitute forcible resistance.^^ The court acknowledged that a decade and a half earlier, it had interpreted the term "forcibly resists" to require "strong, powerful, violent means ... to evade a law enforcement official's rightful exercise of his or her duties."''^ In Graham, however, the court appeared to take a step back from that sweeping language, noting that "even 'stiffening' of one's arms when an officer grabs hold to position them for cuffing" would qualify as forcible resistance.^^ Courts cited Graham just once during the survey period. In Berberena v. State,^^ the police officer offered no testimony about the defendant's use of force: And I was struggling to gain control of his hands to place them behind his back. * * * I just forcibly placed his hands [sic] and put them in handcuffs. * * * Q: Officer, what was Mr. Barbarena [sic] doing with his hands when you tried to place him in handcuffs? A: Sir, I don't exactly know. I know I was struggling with him to get control of his hands. Q: Where did he have his hands? A: Once again I can't recall 82 The court emphasized there was "no evidence offorce," which remains a required element of the statute and decisional law interpreting it.^^ In future cases, one might expect prosecutors not to charge resisting arrest when the officer cannot recall whether the defendant used any force. Alternatively, police officers may have a better recollection of some action, even 76. See, e.g., Spangler v. State, 607 N.E.2d 720, 724-25 (Ind. 1993); Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App. 1998); Blaster v. State, 596 N.E.2d 278, 280 (Ind. Ct. App. 1992). 77. 903 N.E.2d 963 (Ind. 2009). 78. Mat 966. 79. Id at 965 (quoting Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)). 80. Id at 966 (citing Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App. 2005)). 81. 914 N.E.2d 780 (Ind. Ct. App.), trans, denied, 919 N.E.2d 559 (Ind. 2009). 82. Id at 782. 83. Mat 783. 700 INDIANA LAW REVIEW [Vol. 43 :69 1 tensing up, to offer in support of "forcible" resistance. Although defendants usually face bench trials on misdemeanor charges of resisting arrest, ^"^ they may consider requesting a jury trial when the evidence is merely that the defendant stiffened up, which may be viewed as an involuntary reaction to being grabbed by an officer effectuating an arrest. The pattern jury instruction merely lists, without elaboration, the "forcibly" requirement.^^ Moreover, the Indiana Supreme Court has made it clear that language from an appellate opinion, especially when it merely highlights a piece of evidence, is not appropriate fodder for a jury instruction.^^ If such cases went before juries that were given only a general definition of force, an acquittal might be more likely than in a bench trial. Public intoxication requires a person to be intoxicated in a public place, i.e., a "place that is visited by many persons, and usually accessible to the neighboring public."^^ In Christian v. State,^^ the court of appeals held that a driveway between two residences was not a public place.^^ The court reasoned that "[t]he State presented no evidence that the parking area was used by the public in general rather than only the residences next to the area."^^ Although resisting law enforcement and public intoxication charges are fairly common, charges of official misconduct are filed much less frequently. "A public servant who: knowingly or intentionally performs an act that the public servant is forbidden by law to perform . . . commits official misconduct, a Class D felony."^' The statutory language is broad and general, but "the heart of the issue in an official misconduct charge is explicit: whether the act was done by a public official in the course of his official duties."^^ In Heinzman v. State^^ the court reversed several convictions for official misconduct involving a Child Protective Services caseworker because he was no longer working in his official capacity when he molested a child.^"^ Continuing with uncommon crimes, although few people would think that buying two boxes ofcold medicine is a crime, it can be a Class C misdemeanor.^^ Title 35, section 48-4-14.7(d) of the Indiana Code prohibits the purchase within 84. Defendants may request a jury trial in irnisdemeanor cases "by filing a written demand therefor not later than ten (10) days before [the] first scheduled trial date." Ind. Crim. R. 22. 85. See iND. PATTERN Jury Instructions (Criminal) § 5.23 (2008). 86. See generally Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 36 iND. L. REV. 1003, 1021-22 (2003). 87. Christian v. State, 897 N.E.2d 503, 505 (Ind. Ct. App. 2008), trans, denied, 915 N.E.2d 983 (Ind. 2009) (quoting Jones v. State, 881 N.E.2d 1095, 1097 (Ind. Ct. App. 2008)). 88. Id 89. Id. at 505. 90. Id 91. Ind. Code § 35-44-1-2(1) (2008). 92. State v. Dugan, 793 N.E.2d 1034, 1039 (Ind. 2003). 93. 895 N.E.2d 716 (Ind. Ct. App. 2008), trans, denied, 915 N.E.2d 978 (Ind. 2009). 94. Id at 724. 95. See iND. CODE § 35-48-4-14.7(d) (2008). 20 1 0] CRIMINAL LAW 70 1 one week of medication containing more than three grams of ephedrine, pseudoephedrine, or both.^^ In Slone v. State^^ the defendant stipulated that she had bought two twenty-count packages of medication containing pseudoephedrine within one week and had taken the medication at a quicker rate than the recommended dosage.^^ Nevertheless, the court of appeals found insufficient evidence that Slone "knowingly" purchased more than three grams of pseudoephedrine.^^ The court reasoned that "consumers may be required to use the metric system making unit conversions and multiply quantities . . . none of which has the State proved Slone capable of doing."^^^ Moreover, it faulted the State for failing to "enter into evidence either ofthe packages ofdmgs which Slone purchased, so [the court could not] review what information regarding the contents those drugs was contained on the packaging or how such information was displayed on the packaging."^^^ Slone appears to be anomalous of the usual approach to sufficiency review, in which the appellate court draws all inferences in support of the verdict. ^^" Requiring the State to produce the medication boxes or to somehow demonstrate a defendant's subjective knowledge poses a substantial, if not insurmountable, burden. In the context ofmany street drugs, where offenses are enhanced for the possession or sale of more than three grams, ^^^ Slone may lead defendants to argue, for example, that they thought they only possessed two and a half grams or did not understand the metric system. The criminal offenses described above—indeed, almost every criminal offense in the Indiana Code—requires knowledge or intentional conduct. Relatively few offenses require only reckless conduct, which is when a person engaged in conduct "in plain, conscious, and unjustifiable disregard ofharm that might result and the disregard involves a substantial deviation from acceptable standards of conduct."^^ State v. Boadi^^^ surveyed and synthesized significant cases of vehicular reckless homicide before concluding that "failing to stop at an intersection cannot, without more, constitute criminally reckless conduct."^^^ In Boadi, a semi-truck driver ran a red light at forty miles per hour on a clear day.^^^ His vehicle was properly maintained, he had not been driving longer than 96. Id. The 2010 Indiana General Assembly amended this section, and the new provisions went into effect July 1, 2010. See 2010 Ind. Legis. Serv. P.L. 97-2010 (H.E.A. 1320) (West). 97. 912 N.E.2d 875 (Ind. Ct. App.), trans, denied, 919 N.E.2d 559 (Ind. 2009). 98. Mat 880. 99. Mat 881. 100. Id 101. Mat 880. 102. See, e.g., id. at 878-79 (quoting Perez v. State, 872 N.E.2d 208, 212-13 (Ind. Ct. App. 2007)). 103. See, e.g., iND. CODE §§ 35-48-4-l(b), -6(b) (2008). 104. Id § 35-41-2-2(c). 105. 905 N.E.2d 1069 (Ind. Ct. App. 2009). 106. Id at 1074. 107. Id at 1070. 702 INDIANA LAW REVIEW [Vol. 43 :69 1 regulations allowed, nor was he under the influence of any alcohol or drugs. ^^^ The court suggested that a different result could occur if a driver was speeding, had violated trucking regulations on rest, or was driving in poor weather conditions. ^^^ 2. Sufficient Evidence.—The appellate courts found sufficient evidence to support convictions for disorderly conduct by means of tumultuous conduct^ *^ and battery in a case involving purportedly consensual sadomasochism.' '^ In Bailey v. State,^^^ the Indiana Supreme Court upheld a conviction for disorderly conduct because the defendant engaged in "tumultuous conduct."''^ The statute defines tumultuous conduct as conduct likely to result in serious bodily injury or substantial property damage. ''"^ In Bailey, a high school student threw down his drink and coat, stepped toward the dean ofstudents "in an angry manner, clinched up his fists at his sides and let out a series of obscenities all within inches of [the dean's] face."''^ The student backed away upon seeing a police officer, but the dean testified that he "felt like [the student] was ready to hit me."''^ In Govan v. State, ^^^ the court of appeals revisited the contours of consent as a defense to battery.''^ In 1993, the court of appeals rejected consent as a defense to a gang initiation that included "twenty bare-fisted, hard blows" to the victim's head.''^ In that case, the court made clear that consent may sometimes be a defense to battery, although it is not a defense where (1) "the defendant goes beyond acts consented to and beats to death the victim who consented only to the defendant's execution ofthe organization's initiation ritual ofbeing struck in the stomach until he passed out"; (2) the conduct is "against public policy," such as 108. Mat 1071. 109. Id. at 1075. 1 10. See Bailey v. State, 907 N.E.2d 1003, 1006-07 (Ind. 2009). 111. See Govan v. State, 913 N.E.2d 237, 241, 243 (Ind. Ct. App.), trans, denied, 919 N.E.2d 558 (Ind. 2009). Although not expressly a sufficiency case, in State v. Manuwal, the Indiana Supreme Court addressed the fairly common offense of operating a vehicle while intoxicated but in the context of off-road driving. Manuwal, 904 N.E.2d at 657. The court held that operating an all-terrain vehicle on private property while intoxicated could be prosecuted under the general statutes prohibiting the operation of vehicles while intoxicated. Id. at 658-59; see Ind. Code §§ 9-30-5- 1(b), -2 (2004). Such prosecution is possible because neither statute limits its application to public highways, nor does either statute reference "operator" or "highway," which have separate statutory definitions that refer to public roadways. Manuwal, 904 N.E.2d at 658. Finally, the decision was consistent with prior court ofappeals decisions that applied the operating-a-vehicle- while-intoxicated (OVWI) statutes to driving on private property. Id. at 659. 1 12. 907 N.E.2d 1003 (Ind. 2009). 113. Mat 1007. 1 14. Id at 1006 (citing Ind. Code § 35-45-1-1 (2008)). 115. Mat 1007. 116. Id 117. 913 N.E.2d 237 (Ind. Ct. App. 2009). 118. Mat 241-43. 1 19. Id at 241 (citing Helton v. State, 624 N.E.2d 499, 515 (Ind. Ct. App. 1993)). 20 1 0] CRIMINAL LAW 703 when "there are no sexual overtones and the battery is a severe one which involves a breach of the public peace as well as an invasion of the victim's physical security"; (3) consent was obtained by fraud or from a person lacking legal capacity; (4) a deadly weapon is used; (5) the victim is killed; or (6) "the battery is atrocious or aggravated. "'^^ Applying this precedent in Govan, the court concluded that the defense of consent was unavailable, even though the defendant claimed his girlfriend had consented to sadomasochistic sexual practices that included beating with an extension cord and branding with a hot knife. ^^' Even though the case had sexual overtones, the use of a deadly weapon rendered consent unavailable.'^^ Moreover, the court reasoned that the jury could have reasonably found a lack of consent based on testimony that the beating occurred because the victim had been with another man, that the victim subsequently locked herself in a closet where she tried to kill herself, and that the victim never mentioned consent when reporting the incident. '^^ No challenge was made to the jury instructions in Govan, and the opinion does not mention how the judge instructed the jurors. The opinion concludes, "[i]n such a highly charged domestic case as this, the jury is in the best position to make credibility determinations."'^"* In cases where the testimony is conflicting on consent, ajury is certainly well-positioned to make credibility determinations. However, it is unclear how the court would instruct the jury about the contours of consent as a defense. Furthermore, it is unclear if courts would even give an instruction in cases in which a deadly weapon was used, the battery was "atrocious or aggravated," or the victim lacked capacity. '^^ The jury would presumably be able to determine issues of capacity or atrociousness,'^^ although the use of a deadly weapon might be deemed disqualifying by a trial court in refusing an instruction.'^^ 3. Move to Dismiss—or Waitfor Trial?—As a final point, these cases raise the issue ofthe means by which a defendant may challenge the sufficiency ofthe evidence to support a charge. In some cases, such as Graham and Heinzman, the defendants went to trial, were found guilty, and raised a sufficiency claim on appeal. '^^ In other cases, such as Boadi, however, the defendants sought 120. Id. at 242 (citing Helton, 624 N.E.2d at 514). 121. M at 238, 242-43. 122. Mat 242-43. 123. Mat 243. 124. Id. 125. See id. at 242 (citing Helton, 624 N.E.2d at 514). 126. See Harvey V. State, 652 N.E.2d 876, 877 (Ind. Ct. App. 1995) (observing that defendants are "entitled to an instruction on any defense which has some foundation in the evidence, even when that evidence is weak or inconsistent"). 1 27. See Mayes v. State, 744 N.E.2d 390, 394 (Ind. 200 1 ) (summarizing the requirements for instructions, including "whether there was evidence presented at trial to support giving the instruction"). 128. See supra notes 76-82, 92-93, and accompanying text. 704 INDIANA LAW REVIEW [Vol. 43 :69 1 dismissal ofthe charges in the trial court. '^^ According to statute, dismissal ofan information is required when the "facts stated do not constitute an offense."' ^^ In cases in which the State's evidence does not support the charged offense—or any other offense—a motion to dismiss would seem most appropriate to avoid the time, expense, and stress of a trial. In other cases, however, if the State has filed the wrong charge, the best defense is to do nothing. When the State submits its evidence at trial, the defense can argue for an acquittal. If that fails, Atteberry v. State^^^ provides an example of the appellate court reversing a conviction because the prosecutor filed the wrong charge. '^^ There, the State charged rape although the evidence supported criminal deviate conduct. '^^ "Fundamental due process and common sense both require that the State must prove the elements of the crime it charged, not the elements ofsome other crime . . . ."'^"^ The court concluded that "trauma to L.L.'s anus, plus the presence of semen stains in her underwear," which would have supported a criminal deviate conduct charge, were insufficient to support a rape conviction. '^^ Had the defendant filed a pretrial motion to dismiss, the State would surely have amended the charge. By waiting to raise the issue until the end of trial, however, the State lost the abihty to amend the charge and double jeopardy principles barred a new trial on the correct charge. E. Dismissal ofChargesfor Incompetence to Stand Trial In State v. Davis,^^^ a woman charged with Class D felony criminal recklessness was found incompetent to stand trial and committed to the Division of Mental Health and Addiction. '^^ Three years later, a psychiatrist opined that the defendant "cannot be restored to competence," and defense counsel moved to dismiss the charge. '^^ The trial court granted the motion to dismiss, and the Indiana Supreme Court affirmed. '^^ The court acknowledged that trial courts have "inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant's constitutional rights."*"^^ The maximum 129. See supra notes 105-09 and accompanying text. 130. IND. Code § 35-34-1 -4(a)(5) (2008). 131. 911 N.E.2d 601 (Ind. Ct. App. 2009). 132. Id. at 603. Although Atteberry was a sufficiency case, a related theory is material variance, i.e., that the evidence at trial did not match the charge. See generally Joel M. Schumm, Recent Developments in Indiana CriminalLaw andProcedure, 34 iND. L. REV. 645, 659-61 (2001) (discussing Allen v. State, 720 N.E.2d 707 (Ind. 1999)). 133. Atteberry,9\\'H.E2d2^.6\\. 134. Id 135. Id 136. 898 N.E.2d 281 (Ind. 2008). 137. Mat 283-84. 138. Mat 284. 139. Mat 284, 290. 140. Mat 285. 2010] CRIMINAL LAW 705 period of incarceration for a Class D felony is three years (with credit for time served'"^'), which had long passed at the time of dismissal. ^"^^ Davis seems unlikely to lead to dismissals in many future cases. Many defendants found incompetent are restored to competence within months through medication. The relatively few who are not likely to be restored to competence will be able to secure dismissal only if charged with a relatively minor offense, as in Davis', those charged with more serious offenses will presumably need to wait until the maximum term of incarceration arrives before seeking dismissal.'"*^ Finally, as the court acknowledged in Davis, even in cases with a short period of incarceration, the State may argue against dismissal if it can point to a "substantial public interest" in securing a conviction,*"^ such as the ability to use the conviction for a later enhancement or requirement of registration as a sex offender. F. Sentencing Sentencing challenges come in many shapes and sizes, with some grounded in statutory provisions, others in the appellate rules, and some in constitutional provisions. Regardless of their basis, though, sentencing claims continue to be the most frequently raised and are often successftil on appeal. 1. Consecutive Sentences.—Before discussing the significant developments during the survey period, this section begins with the biggest non-development. In Oregon v. Ice,^'^^ the U.S. Supreme Court considered whether the Sixth Amendment right to a jury trial limited the ability to impose consecutive sentences.*"*^ The majority acknowledged that the prohibition on judicial factfinding to increase punishments beyond the statutory maximum beginning in Apprendi v. New Jersey^^^ had since been applied in other contexts, including the death penalty, state "standard" range sentencing, the Federal Sentencing Guidelines, and "upper term" sentences in a determinate sentencing scheme. '"^^ However, the Court refiised to apply the same limitations to consecutive sentences, holding that "historical practice and respect for state sovereignty" counseled against extending Apprendi' s rule.'"^^ Agreeing with the majority's stated concern for a "principled rationale," Justice Scalia, writing for the four dissenters, aptly concluded "[t]he Court's reliance upon a distinction without a difference, and its repeated exhumation of arguments dead and buried by prior 141. Id at 289 (citing IND. CODE §§ 35-50-2-7, -6-3(a) (Supp. 2008)). 142. Id 143. See Davis, 898 N.E.2d at 289. 144. Mat 289-90. 145. 129S.Ct. 711(2009). 146. Mat 714. 147. 530 U.S. 466, 490 (2000). 148. Ice, 129S.Ct. at 716-17. 149. Idatin. 706 INDIANA LAW REVIEW [Vol. 43 :69 1 cases, seems to me the epitome ofthe opposite."' ^^ The Oregon statutory scheme in Ice bore remarkable similarity to the one in Indiana, and the Indiana Supreme Court refused to apply Apprendi to consecutive sentences nearly five years ago in Smylie v. State }^^ Indiana's courts, however, consider limits on consecutive sentences based on statutory provisions. Defendants convicted of multiple, non-violent felonies as part of an episode of criminal conduct cannot be sentenced to an aggregate term greater than the advisory sentence for a felony one class higher than the most serious of their offenses. '^^ For example, a defendant convicted of three non- violent Class D felonies as part of the same episode of conduct could face no more than four years, the advisory sentence for a Class C felony. *^^ In Dunn v. State, ^^"^ the defendant was convicted of three Class A misdemeanors and argued that his sentence could not exceed one and a half years, the advisory sentence for a Class D felony. '^^ He relied on Purdy v. State, ^^^ which imposed a four-year cap on the sentence for a defendant convicted of one Class D felony and two Class A misdemeanors.'^^ In Dunn, however, the court focused on the misdemeanor- only nature of the offenses and upheld the three-year sentence. '^^ The court left a window open, though: "Dunn cites no other statutory, constitutional, or common law restrictions on consecutive sentences for misdemeanor[s]."'^^ Defendants in the ftxture may be better advised to argue the sentence is inappropriate under Indiana Appellate Rule 7(B), which affords a generous standard of review and plenty of examples of limitations on consecutive sentences. '^^ Although trial courts generally have discretion to impose consecutive sentences,'^' longstanding precedent forbids imposition of consecutive habitual offender enhancements. In Breaston v. State, ^^^ the supreme court reaffirmed those cases and made clear that the limitation applies even when a defendant is sentenced for crimes that are mandatorily consecutive under Indiana Code section 35-50-1 -2(d) because that statute does not provide the requisite "express statutory 150. Id. at 723 (Scalia, J., dissenting).' 151. 823 N.E.2d 679, 686 (Ind. 2005), superseded by statute as noted in Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007). 152. Ind. Code §35-50-1 -2(c) (2008). 153. M § 35-50-2-6(a). 154. 900 N.E.2d 1291 (Ind. Ct. App. 2009). 155. Mat 1291. 156. 727 N.E.2d 1091 (Ind. Ct. App.), trans, denied, 741 N.E.2d 1251 (Ind. 2000). 157. Dunn, 900 N.E.2d at 1292 (citing Pwr^, 727 N.E.2d at 1094). 158. Id 159. Id 160. See, e.g., Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008) ("Whether the counts involve one or multiple victims is highly relevant to the decision to impose consecutive sentences . . . ."); see also infra Part II.F.2 (discussing 7(B) cases decided during the survey period). 161. Ind. Code § 35-50-l-2(c) (2008). 162. 907 N.E.2d 992 (Ind. 2009). 2010] CRIMINAL LAW 707 authorization for ... a tacking of habitual offender sentences. "^^^ Citing Breaston, the supreme court found ineffective assistance of counsel in Farris v. State, ^^ where counsel did not object to consecutive habitual offender enhancements imposed in separate trials on related charges. ^^^ 2. Rule 7(B) Cases.—Beyond the statutory limitations, many sentencing challenges are grounded in the court's constitutional power to review and revise sentences, as implemented through Appellate Rule 7(B). ^^^ This is different from a challenge to the adequacy of the reasons stated by the trial court in imposing a sentence. As reiterated in King v. State, ^^^ a sentencing challenge may allege trial court error in its sentencing statement, which is reviewed for an abuse of discretion, or it may challenge the number of years or placement as inappropriate. ^^^ As to the latter, appellants must convince the appellate court a sentence is inappropriate in light of the nature of the offense and the character of the offender under Appellate Rule 7(B). '^^ This is an independent review by the appellate court and not reviewed under an abuse of discretion standard. ^^^ In Cardwell v. State, ^^^ the Indiana Supreme Court was remarkably candid about appellate sentence review in reducing a sentence from thirty-four years to seventeen for two counts of Class B felony neglect of a dependent. ^^^ The court acknowledged that "there is thus no right answer as to the proper sentence in any given case" and that it had "not adopted a consistent methodology in reviewing sentences."'^^ Rather, in reviewing sentences, the court usually describes "the nature of the offense and character of the offender (13 cases), but sometimes independently assign[s] weights to aggravators and mitigators (5 cases) or compare[s] the defendant's sentence to others' or the hypothetical 'worst 163. Id. at 995 (quoting Starks v. State, 523 N.E.2d 735, 737 (Ind. 1988)). 164. 907 N.E.2d 985 (Ind. 2009). 165. Mat 987-88. 166. See iND. CONST, art. 7, §§ 4, 6; iND. R. App. P. 7(B). The Indiana Supreme Court has made clear that this provision allows for extensive sentence review "when certain broad conditions are satisfied." Neale v. State, 826 N.E.2d 635, 639 (Ind. 2005); see also Stewart v. State, 866 N.E.2d 858, 865-66 (Ind. Ct. App 2007) (observing that the Indiana Supreme Court has reduced eleven of twenty-two sentences reviewed under Appellate Rule 7(B) since January 2003). 167. 894 N.E.2d 265 (Ind. Ct. App. 2008). 168. Mat 267. 169. Id. 170. Id. In addition, King exemplified the difficulty in challenging the place a sentence is ordered to be served. As explained in last year's survey, the court of appeals requires defendants challenging a placement to convince the court the placement is inappropriate, which is especially difficult because trial courts know the availability, costs, and entrance requirements for community corrections in a specific county. See Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 42 iND. L. Rev. 937, 951 (2009) [hereinafter Schumm, 2009 Recent Developments] (discussing Fonner v. State, 876 N.E.2d 340 (Ind. Ct. App. 2007)). 171. 895 N.E.2d 1 2 1 9 (Ind. 2008). 172. Id at 1224-27. 173. Id at 1224. 708 INDIANA LAW REVIEW [Vol. 43 :69 1 offender' (4 cases)."^^"^ The court emphasized that "[t]he principal role of appellate [sentence] review should be to attempt to leaven the outliers, and identify some guiding principles for trial courts and those charged with improvement of the sentencing statutes, but not to achieve a perceived 'correct' result in each case."^^^ Because the number of counts "is virtually entirely at the discretion of the prosecution[,] . . . appellate review should focus on the forest—^the aggregate sentence—^rather than the trees—consecutive or concurrent, number of counts, or length of the sentence on any individual count."^^^ In reducing the sentence, the court noted that the defendant's knowledge of the temperature of the water that burned the child's hands was "vigorously contested," the trial court made "no findings" about prior abuse, and the disparity with the co-defendant's sentence was "stark."^^^ Although cases like Cardwell highlight the willingness of appellate courts to reduce sentences, it also underscores the difficulty for defense counsel in advising a client about a plea agreement that includes a sentence waiver provision^ ^^ when there is "no right answer" about sentencing in any case.^^^ Nevertheless, Cardwell could be cited in foture cases to argue the significance of disparity with a co-defendant's sentence or to diminish the impact of evidence offered by the State at sentencing when the trial court made no findings on the issue. Other cases decided during the survey period provide examples of the parameters for 7(B) review. In Tyler v. State, ^^^ the Indiana Supreme Court emphasized that the defendant was emotionally troubled, had been in institutional placements for much of his childhood, and had an IQ in the range of sixty-one to seventy-two.'^^ The court reduced the 1 10-year sentence to sixty-seven and a half years. '^^ In Mishler v. State, ^^^ the court of appeals reduced a sentence in a child molestation case.'*^"^ Although the court found that the two separate acts of molestation were "monstrous," it reduced the fifty-year maximum concurrent sentences to thirty-eight years based on the defendant's limited criminal history of possession of marijuana ten years earlier. '^^ Cases like Tyler and Mishler should give defense counsel some pause when waiving the right to appeal a 1 74. Id. (citations and footnotes omitted) 175. Id. at 1225. 176. Id 177. Mat 1226. 178. In Creech v. State, 887 N.E.2d 73 (Ind. 2008), the Indiana Supreme Court held that "a defendant may waive the right to appellate review of his sentence as part of a written plea agreement." Id. at 75. The matter need not be discussed on the record if other evidence demonstrates the defendant entered into the agreement knowingly and voluntarily. Id. at 76. 179. Cardwell, 895 N.E.2d at 1224. 180. 903 N.E.2d 463 (Ind. 2009). 181. Mat 469. 182. Mat 468-69. 183. 894 N.E.2d 1095 (Ind. Ct. App. 2008). 184. Mat 1097. 185. Mat 1104. 2010] CRIMINAL LAW 709 sentence in a child molestation case. Ifthe defendant has only a minimal criminal history, the maximum sentence will seldom be appropriate. Although most 7(B) cases involve only an executed sentence, some challenged sentences include years suspended to probation. A significant split in the court of appeals has developed regarding the suspension of sentences under Rule 7(B) reviews. This issue first surfaced in Beck v. State}^^ There, the court observed the defendant's "suspended sentence of 365 days is not the maximum sentence permitted by statute."^ ^^ Judge Mattingly-May wrote a concurring opinion in which she observed, "[a] 365-day sentence, whether suspended or served in the Department of Correction, is the 'maximum sentence.' A year is still a year, and a sentence is still a sentence. A suspended sentence is one actually imposed but the execution of which is thereafter suspended."^^^ Judge Mattingly-May' s position was adopted with little discussion in Cox v. State^^^ and Pagan v. State}^^ Judge Sullivan wrote separately in Cox to express agreement with Judge Mattingly-May' s view by noting, "[t]o be sure, a suspended maximum sentence is less onerous in its penal impact upon a defendant than a ftiUy executed sentence, but it is not a sentence for less than the maximum number of years called for by statute."^^^ Again the next year, another panel of the court of appeals in Eaton v. State^^^ agreed with Judge Mattingly-May' s view. Judge Kirsch dissented, expressing the view that "a suspended sentence is not the same as an executed sentence, and time spent on work release through a community corrections program is not the same as time spent in a state prison."'^^ The issue did not arise again in a published opinion until July of 2009, where a unanimous panel in Jenkins v. State adopted the minority approach. ^^"^ There, the court adopted Judge Kirsch' s view in Eaton, concluding "[m]ost would agree that prison is worse than probation, and it is simply not realistic to consider a year of probation, a year in community corrections, and a year in prison as equivalent."'^^ The Jenkins approach, however, may not ultimately withstand Indiana Supreme Court scrutiny for several reasons. First, treating suspended sentences differently than executed sentences finds no support in the sentencing statutes, which should be of primary importance. The sentencing statutes focus on a number of years, with no mention ofwhether they are executed or suspended. '^^ The sentencing range and advisory sentence for each class of felony is simply a 186. 790 N.E.2d 520, 523 (Ind. Ct. App. 2003). 187. Mat 522. 188. Id at 523 (Mattingly-May, J., concurring in result). 189. 792 N.E.2d 898, 904 n.6 (Ind. Ct. App. 2003). 190. 809 N.E.2d 915, 926 n.9 (Ind. Ct. App. 2004). 191 . Cox, 792 N.E.2d at 906 (Sullivan, J., concurring in part and dissenting in part). 192. 825 N.E.2d 1287, 1290-91 (Ind. Ct. App. 2005), overruledon othergrounds ^3; Childress V. State, 848 N.E.2d 1073, 1077 n.2 (Ind. 2006). 193. Id. at 1291 (Kirsch, C.J., dissenting). 194. 909 N.E.2d 1080 (Ind. Ct. App.), trans, denied, 919 N.E.2d 555 (Ind. 2009). 195. Mat 1084. 196. See iND. CODE § 3 5-50-2- 1(c) (2008) (defining minimum sentences). 7 1 INDIANA LAW REVIEW [Vol. 43 :69 1 number ofyears—not a number ofyears suspended or executed. ^^^ For example, a "person who commits a Class C felony shall be imprisoned for a fixed term of between two (2) and eight (8) years, with the advisory sentence being four (4) years. "'^^ A separate statute makes clear that trial courts "may suspend any part of Si sentence for a felony, except as provided in this section or in section 2.1 of this chapter.'"'' Next, although the Indiana Supreme Court has not squarely addressed the issue, making no distinction between executed and suspended sentences finds support in the court's 7(B) decisional law. Although 7(B) reductions have primarily involved fully executed (and often maximum or consecutive) sentences, when a portion of the sentence has been suspended, the court has viewed suspended time no differently than executed time.^^^ Moreover, in Mask v. State^^^ the court cited with approval Judge Mattingly-May's concurring opinion in Beck?^^ Specifically, in addressing whether any suspended portion of a sentence must be considered a period of"incarceration" or "imprisonment" under Indiana Code section 35-50-1 -2(c), the court concluded: Incarceration in the context of subsection (c) does not mean the period of executed time alone. A suspended sentence differs from an executed sentence only in that the period of incarceration is delayed unless, and until, a court orders the time served in prison. In other words, the imposition of a suspended sentence leaves open the real possibility that an individual will be "sent to incarceration for some period" before being released fi*om any penal obligation. This commonly occurs when probation or parole is revoked, and a defendant who received probation or parole is subject to incarceration until released.^^^ Finally, making no distinction between suspended and executed time is necessary to ensure defendants receive meaningful sentencing review. The Indiana Constitution provides for the review and revision of sentences. ^^"^ It makes no distinction between sentences imposed on direct appeal or after a probation violation. A term of incarceration after a probation violation is no different from one imposed at a sentencing hearing; both defendants are at the Department of Correction for a fixed period where their liberty is restricted in significant ways. However, in Prewitt v. State,^^^ the court adopted an abuse of 197. Id. §§ 35-50-2-3 to -7. 198. Id. § 35-50-2-6(a). 199. Id § 35-50-2-2(a) (emphasis added). 200. See, e.g., Neale v. State, 826 N.E.2d 635, 636, 639 (Ind. 2005) (reducing "the maximum" sentence of fifty years with ten suspended to forty years with ten suspended). 20 1 . 829 N.E.2d 932 (Ind. 2005). 202. Id. at 936 (citing Beck v. State, 790 N.E.2d 520, 523 (Ind. Ct. App. 2003) (Mattingly- May, J., concurring in result)). 203. Id. (citation omitted). 204. See Ind. Const, art. 7, §§ 4, 6. 205. 878 N.E.2d 184 (Ind. 2007). 20 1 0] CRIMINAL LAW 7 1 1 discretion standard for reviewing sentences after the revocation of probation.^^^ This has been an especially high bar that no defendant has been able to meet before either the court of appeals or supreme court.^^^ Under the Jenkins approach, trial courts have a blank check to impose the ftill back-up time after the revocation of probation. Whether "almost any defendant, given the choice, would gladly accept a partially suspended sentence over a fully executed one of equal length"^^^ is simply not relevant to the issue. Rather, the reality and consequences of a suspended sentence are crucial, and suspended sentences may—and often are—ordered served as executed sentences.^^^ 3. Increasing Sentences on Appeal.—Defendants generally exercise their constitutional right to appeal with the presumption the worst that can happen is an "affirmed" at the bottom of the opinion and a continuation of the status quo. That understanding changed with McCullough v. State}^^ There, the Indiana Supreme Court offered a comprehensive review of article 7, section 6 of the Indiana Constitution, which created the power to review and revise sentences in 1970.^^' Although that provision had been applied exclusively for the benefit of defendants seeking a reduction in their sentence, the court concluded that "'revise' is not synonymous with 'decrease,' but rather refers to any change or alteration. "^^^ This is consistent with the ABA Model Judicial Article and the British system on which the Indiana provision was based, which allows increased sentences on appeal.^ ^^ The appellate courts, however, do not have an unfettered right to increase sentences on appeal.^'"* Rather, only when a defendant seeks 206. Id. at 188. 207. See, e.g., Jones v. State, 885 N.E.2d 1286, 1290 (Ind. 2008) (affirming the court of appeals's rejection of defendant's abuse of discretion claim); Podlusky v. State, 839 N.E.2d 198 (Ind. Ct. App. 2005) (affirming revocation of probation and imposition of previously-suspended sentence, where notice of probation violation was filed five days after defendant left treatment facility and failed to inform probation department that probationer had moved back to her apartment, the address on file with the probation department). 208. Jenkins v. State, 909 N.E.2d 1080, 1084 (Ind. Ct. App.), trans, denied, 919 N.E.2d 555 (Ind. 2009). 209. 5'eezV/. at 1084-85. 210. 900 N.E.2d 745 (Ind. 2009). 211. Mat 746-49. 212. Mat 749. 213. Mat 749-50. 214. See id. at 750-5 1 (noting that defendant must first seek appellate review and revision of his sentence before an appellate court can even consider increasing the sentence). The court is free, however, to correct an illegal sentence, as in Young v. State, 901 N.E.2d 624 (Ind. Ct. App.), trans, denied, 919 N.E.2d 552 (Ind. 2009). In Young, the defendant was convicted of Class D felony operating a vehicle while intoxicated (OVWI) and ofbeing an habitual substance offender (HSO). Id. at 625. Most ofthe OVWI time and all ofthe HSO time were suspended. Id. The mandatory HSO term is three to eight years, "[a]nd the trial court can only suspend that portion ofthe sentence in excess ofthree and a halfyears." Id. at 626 (citing Bauer v. State, 875 N.E.2d 744, 750 (Ind. Ct. App. 2007)). Therefore, the case was remanded with instructions to order three and a half years 7 1 2 INDIANA LAW REVIEW [Vol. 43 :69 1 revision of the sentence will the court consider "whether to affirm, reduce, or increase the sentence. "^'^ In responding to such a challenge, the State may present reasons for an increased sentence.^^^ The State may not initiate a sentencing challenge on appeal or cross-appeal, however.^ '^ Justice Boehm, joined by Justice Rucker, wrote a separate concurring opinion aptly noting that the majority's approach "puts the defendant's counsel in a very awkward position if upward revision by an appellate court is a realistic prospect."^' ^ He counseled against forcing lawyers "to choose among raising the issue and obtaining an increased sentence, or foregoing the issue and either waiving appeal or raising frivolous issues."^'^ He concluded the court should "forthrightly" acknowledge its power to increase a sentence but make clear "we have never exercised it and do not expect to exercise it in the future except in the most unusual case."^^^ In the six months of the survey period following McCullough, neither the supreme court nor court of appeals increased a sentence.^^' The court of appeals showed some reluctance to consider an increase in a case in the appellate pipeline at the time McCullough was issued. For example, in Atwood v. State^^^ the defendant requested a reduction in his twelve-year sentence for B felony possession of cocaine.^^^ The sentencing range for a Class B felony is six to twenty years,^^"^ and the State requested an increase in the sentence.^^^ However, Atwood's initial brief was filed days before the supreme court issued McCullough}^^ Concerned that Atwood would not have raised the issue had he known his sentence could be increased, the court refused to consider the State's request for an increase.^^^ As to Atwood' s argument for a reduction, the court had executed time. Id. This meant the defendant, who had completed his 240-day sentence, would have to serve nearly a year and a half additional executed time in jail or community corrections even with credit for good behavior. 215. McCw/Zowg/z, 900 N.E.2d at 750. 216. Mat 751. 217. Mat 750. 218. Id. at 753 (Boehm, J., concurring). 219. M 220. Id 22 1 . See, e.g. , Moore v. State, 907 N.E.2d 1 79, 1 83 (Ind. Ct. App.) CMcCullough was handed down twenty-seven days after Moore's counsel briefed this case, and we are not inclined to apply McCullough retroactively without specific direction from our supreme court allowing us to do so."), trans, denied, 919 N.E.2d 555 (Ind. 2009). 222. 905 N.E.2d 479 (Ind. Ct. App.), trans, denied, 919 N.E.2d 556 (Ind. 2009). 223. Mat 486. 224. Id (citing iND. CODE § 35-50-2-5 (2008)). 225. Mat 487. 226. Id 227. Id. at 488, The court did not mention the possibility of filing an amended brief Had Atwood been concerned about the possibility ofan increase in the wake oiMcCullough, Appellate Rule 47 would have allowed him the opportunity to seek to amend his brief and abandon the 20 1 0] CRIMINAL LAW 7 1 3 little trouble finding a two-year enhancement to the ten-year advisory term appropriate in light of his extensive criminal history of twenty-three adult convictions, including eight felony convictions.^^^ McCullough can be fairly criticized by both the defense bar and prosecutors. Defendants and defense lawyers are put in an odd position of trying to decide what could happen on appeal when the Indiana Supreme Court held just months earlier that there is no correct sentence in any case.^^^ Fulfilling defense counsel's ethical duty to provide competent advice is difficult, to say the least. Ultimately, defense lawyers must describe and explain all of the options and let the client decide whether to roll the dice. In cases like Atwood, where the defendant has a lengthy criminal history and could face an increase of eight years, the best advice would seem to be not to press one's luck. The court of appeals would not likely reduce a sentence that is just two years above the advisoiy term when the defendant has a lengthy criminal history. Moreover, prosecutors could understandably be unhappy with the inability to challenge a sentence, except when the defense makes the first move. The goal of consistency in sentencing seems unachievable by considering sentencing appeals only on a one-way street.^^^ No matter how lenient a trial court is at sentencing, under McCullough the State cannot initiate an appeal of a sentence unless authorized to do so by statute. This differs from the federal system and some states.^^^ The State has no opportunity to "leaven the outliers"^^^ on the low end of the range. If a court imposes a minimum sentence, the defendant would have nothing to appeal, and McCullough prohibits the State from initiating on appeal. Finally, McCullough could have a mixed effect on trial court judges. On one hand, it may lead judges to be more meticulous in explaining reasons for sentences at or below the advisory range to stave off a potential increase on appeal. Alternatively, it may lead to longer sentences. Trial judges, who must face the electorate every six years, could understandably be concerned by the prospect ofone oftheir sentences being reversed as too lenient. However, having a lengthy sentence reduced on appeal would certainly play better with the electorate than having a lenient sentence increased on appeal. sentencing issue. See Ind. App. R. 47. 228. Atwood, 905 N.E.2d at 488. 229. See Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008) ("There is ... no right answer as to the proper sentence in any given case."); see also supra text accompanying notes 171-79. 230. See generally Serino v. State, 798 N.E.2d 852, 854 (Ind. 2003) (observing that "a respectable legal system attempts to impose similar sentences on perpetrators committing the same acts who have the same backgrounds"). 231. See IS U.S.C. § 3742(b) (2006); see also Christina N. Davilas, Note, Prosecutorial Sentence Appeals: Reviving the Forgotten Doctrine in State Law as an Alternative to Mandatory Sentencing Laws, 87 CORNELL L. REV. 1259, 1265-66 (2002) (explaining the prosecutorial appeal legislation enacted by Congress in the last thirty years). 232. See Cardwell 895 N.E.2d at 1225. 714 INDIANA LAW REVIEW [Vol. 43:691 G. No Anders Briefs in Indiana Previous survey articles have discussed the propriety of Anders briefs in Indiana.^^^ The court ofappeals suggested in 2002 that appointed counsel should file such a brief and seek to withdraw in cases with frivolous issues,^^"^ although a few years later the court found counsel had inappropriately invoked the procedure in a case with a meritorious sentencing issue.^^^ Those articles concluded that counsel should never file an Anders briefbecause doing so would be inconsistent with longstanding precedent and would conflict with provisions ofboth the rules of professional conduct and the appellate rules.^^^ Although taking a slightly different path, the Indiana Supreme Court reached the same conclusion in Mosley v. StateP^ The court held, "in any direct criminal appeal as a matter ofright, counsel must submit an advocative brief in accordance with Indiana Appellate Rule 46."^^^ The court explained that requiring such briefs — "no matter how frivolous counsel regards the claims to be—is quicker, simpler, and places fewer demands on the appellate courts."^^^ Moreover, this requirement avoids the prejudice to defendants caused "by flagging the case as without merit, which invites perfunctory review by the court. "^"^^ As Justice Boehm's unanimous opinion put it, "in a direct appeal a convicted defendant is entitled to a review by the judiciary, not by overworked and underpaid public defenders."^"^^ Not only must appointed counsel file an advocative brief, but counsel must also be deliberate about choosing issues to make sure the client does not end up worse off after the appeal. As summarized above, the Indiana Supreme Court's recent opinion in McCullough allowed appellate courts to increase sentences on appeal.^"^^ Although the court in Mosley suggested "in those few cases that offer no colorable argument of trial court error whatsoever, counsel may still be able to solicit a sentence revision or even a change in the law."^"^^ In light of 233 . Joel M. Schumm, RecentDevelopments in Indiana CriminalLawandProcedure, 40 IND. L. Rev. 789, 818-20 (2007) [hereinafter Schumm, 2007 Recent Developments]; Joel M. Schumm, Recent Developments in Indiana Criminal Law and Procedure, 37 iND, L. Rev. 1003, 1016-19 (2004) [hereinafter Schumm, 2004 Recent Developments]. 234. See Packer v. State, 777 N.E.2d 733, 737 (Ind. Ct. App. 2002), overruled by Mosley v. State, 908 N.E.2d 599 (Ind. 2009). 235. See Seals v. State, 846 N.E.2d 1070, 1076 (Ind. Ct. App. 2006), overruledby Mosley, 908 N.E.2d at 599. 236. Schumm, 2007 Recent Developments, supra note 233, at 8 1 8-20; Schumm, 2004 Recent Developments, supra note 233, at 1016-19. 237. 908 N.E.2d 599 (Ind. 2009). 238. Mat 602. 239. Id at 608. 240. Id 241. Id 242. See supra notes 2 1 0-20 and accompanying text. 243. Mosley, 908 N.E.2d at 608. 20 1 0] CRIMINAL LAW 7 1 5 McCullough, arguing for a change in the law is surely the lower-risk route. H. Probation During the survey period, the court of appeals clarified an important change to longstanding practice about the addition of probation conditions,^"^ continued its trend offinding probation conditions unconstitutionally vague/"^^ and reversed the revocation of probation in a case in which the State relied solely on a probation officer's unsworn testimony. ^"^^ Before 2005, the probation statute and case law interpreting it did not allow trial courts to impose additional terms of probation in the absence of a probation violation.^"^^ Effective in 2005, Indiana Code section 35-38-2-1.8 now provides: (b) The court may hold a new probation hearing at any time during a probationer's probationary period: (1) upon motion ofthe probation department or upon the court's motion; and (2) after giving notice to the probationer. (c) At a probation hearing described in subsection (b), the court may modify the probationer's conditions of probation. If the court modifies the probationer's conditions of probation, the court shall: (1) specify in the record the conditions of probation; and (2) advise the probationer that if the probationer violates a condition ofprobation during the probationary period, a petition to revoke probation may be filed . . . (d) The court may hold a new probation hearing under this section even if: (1) the probationer has not violated the conditions ofprobation; or (2) the probation department has not filed a petition to revoke probation.^"*^ In Collins v. State, the court of appeals made clear that those earlier precedents had been superseded by the 2005 amendment, which means just what it says: trial courts may "revise the terms of probation regardless of whether a probation violation has occurred."^"*^ Moreover, the amendment was remedial and therefore applied to Collins even though it was not in effect at the time of his offense.^^^ 244. See infra text accompanying notes 252-58. 245 . See infra text accompanying notes 259-6 1 . 246. See infra text accompanying notes 262-65. 247. See, e.g., Jones v. State, 789 N.E.2d 1008, 1012 (Ind. Ct. App. 2003), superseded by statute. Act ofApr. 7, 2005, 2005 Ind. Acts 14, as recognized in Collins v. State, 91 1 N.E.2d 700, 708 (Ind. Ct. App.), trans, denied, 919 N.E.2d 559 (Ind. 2009). 248. Ind. Code §35-38-2-1.8 (2008). 249. Collins, 91 1 N.E.2d at 708. 250. Id 7 1 6 INDIANA LAW REVIEW [Vol. 43 :69 1 It posed no ex post facto problem because it did "not increase the punishment for or change the elements of any crime or deprive anyone of a defense or lesser punishment."^^^ The court correctly declined to follow another case decided during the survey period, Ferrill v. State,^^^ which concluded that trial courts were without authority to modify probation terms absent a probation violation.^^^ In addition to clarifying this important statutory change, Collins followed earlier precedent in finding several special conditions of probation unconstitutionally vague.^^"^ McVey v. State had struck down many of the conditions two years earlier.^^^ Specifically, the court in Collins remanded the following conditions for the trial court to reconsider and clarify with greater specificity: (1) restrictions on "dating" relationships; (2) a prohibition on "cruising"; (3) restrictions on engaging in "activities that could be construed as enticing children"; (4) a ban on possession of "sexually arousing materials"; and (5) a requirement to report "incidental contact with persons under age 18."^^^ Finally, beyond addressing the appropriateness of probation conditions, the court also issued an important reminder on appropriate procedures and evidence at probation hearings. In Tillherry v. State^^^ the court reversed a probation revocation that occurred without any evidence or sworn testimony.^^^ Although the petition to revoke the defendant's probation alleged a new arrest, "an arrest standing alone will not support the revocation of probation. 'Evidence must be presented fi^om which the trial judge could reasonably conclude that the arrest was appropriate and that there is probable cause to believe the defendant violated a criminal law before the revocation may be sustained. '"^^^ Moreover, the unsworn statement of a probation officer that the defendant had shown up only once was insufficient because it did not demonstrate that any appointments had been scheduled or missed.^^^ /. Sex Offender Registry With Wallace v. State,^^^ the Indiana Supreme Court joined a small minority 251. Mat 712. 252. 904 N.E.2d 323 (Ind. Ct. App. 2009). 253. Collins, 91 1 N.E.2d at 708 n.2 (citing Ferrill, 904 N.E.2d at 325). 254. Mat 713-16. 255. Id at 713-15 (citing McVey v. State, 863 N.E.2d 434, 447-50 (Ind. Ct. App. 2007)). Previous survey articles discussed unconstitutionally vague probation conditions. See, e.g., Joel M. Schumm, Recent Developments in Indiana Criminal Law andProcedure, 4 1 iND. L. REV. 955, 970-71 (2008). 256. Collins, 91 1 N.E.2d at 713-16. 257. 895 N.E.2d 41 1 (Ind. Ct. App. 2008). 258. Mat 4 17. 259. Id (quoting Weatherly v. State, 564 N.E.2d 350, 352 (Ind. Ct. App. 1990)). 260. Id 261. 905 N.E.2d 371 (Ind. 2009). 20 1 0] CmMINAL LAW 7 1 7 of courts in striking down the sex offender registry on ex post facto grounds.^^^ Justice Rucker's opinion for a unanimous court begins with a comprehensive history of Indiana's sex offender registry and the increasingly onerous and punitive requirements imposed since its initial enactment in 1994.^^^ Wallace, who was charged with child molesting in 1988 and pleaded guilty in 1989, was required to register based on a 2001 amendment that required all sex offenders, regardless of the date of the offense, to register.^^"^ After he failed to register, he was charged with failing to register as a sex offender and unsuccessfully sought to dismiss the charge in the trial court.^^^ The federal and state ex post facto clauses forbid "punishment for an act which was not punishable at the time it was committed[, and laws that] impose[] additional punishment to that then prescribed."^^^ The underlying principle is to provide "fair warning of that conduct which will give rise to criminal penalties. "^^^ Although the Indiana Court of Appeals had long held the federal and state analysis to be the same, the Indiana Supreme Court seized the opportunity in Wallace to reiterate the "unique vitality" of the state constitution.^^^ Rather than adopting a separate test or analysis for the state constitutional provision,^^^ the court applied the same analysis used by the U.S. Supreme Court and reached a different result.^^^ Specifically, the court applied the "intent-effects" test, focusing on the statute's effects under the seven-factor test from Kennedy v. Mendoza-Martinez?^^ The court concluded that only one factor advanced a non-punitive interest while the others evinced a punitive effect, particularly the seventh factor of excessiveness.^^^ As to that factor, the court 262. See id. at374n.l. 263. Id. at 374-77. 264. Mat 373. 265. Id 266. Id at 377 (quoting Weaver v. Graham, 450 U.S. 24, 28 (1981)). 267. Id. (citing Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind. 2006)). 268. Id at 377-78. 269. But cf. Malinski v. State, 794 N.E.2d 1 07 1 , 1 079 (Ind. 2003) (explaining that unlike the federal constitution, "law enforcement officials have a duty to inform a custodial suspect immediately when an attorney hired by the suspect's family to represent him is present at the station seeking access to him" under article 1 , section 1 3); Richardson v. State, 717 N.E.2d 32, 52- 53 (Ind. 1999) (separate analysis ofthe "actual evidence test" for double jeopardy claims); Brown V. State, 653 N.E.2d 77, 79-81 (Ind. 1995) (separate analysis of "reasonableness" for search and seizure claims); Collins v. Day, 644 N.E.2d 72, 75 (Ind. 1994) (separate analysis for the equal privileges and immunities clause); Price v. State, 622 N,E.2d 954, 957 (Ind. 1993) (separate analysis for political speech claims); accord Daniel O. Conkle, The Indiana Supreme Court 's Emerging Free Speech Doctrine, 69 iND. L.J. 857, 857 (1994) (observing that the "analytical fi-amework" in Price "differs dramatically fi^om that which informs the First Amendment doctrine ofthe United States Supreme Court"). 270. Wallace, 905 N.E.2d at 378. 271. Id. at 379 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). 272. Mat 384. 7 1 8 INDIANA LAW REVIEW [Vol. 43 :69 1 expressed concern that not only is "information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk," but offenders have no mechanism to petition for removal despite proof of rehabilitation.^^^ In Jensen v. State,^^^ decided the same day as Wallace, a fractured court reached a different result in addressing a challenge by a defendant classified as a sexually violent predator and required to register for life.^^^ At the time of his guilty plea in 2000, Jensen was required to register as a sex offender for ten years.^^^ The 2006 amendments, however, classified him as a "sexually violent predator" and required lifetime registration. ^^^ The plurality opinion, written by Justice Rucker and joined by the Chief Justice, found some of the Mendoza- Martinez factors weighed differently in distinguishing Wallace?^^ As to the weighty seventh factor, the plurality emphasized that the "broad and sweeping" disclosure requirements were in effect in 2000 and that sexually violent predators may petition the trial court after ten years to have their status changed, which could result in removal from the registry. ^^^ Justice Sullivan concurred only in the result, opining that Jensen's challenge was not yet ripe for adjudication.^^^ "Only when the 10 year period has run—several years from now—^will Jensen be subject to a registration requirement that might arguably be ex postfacto. ""^^^ Justice Boehm, joined by Justice Dickson, wrote a dissenting opinion that analyzed the Mendoza-Martinez factors differently, concluding that the seventh factor in particular weighed in Jensen's favor: "the newly enacted requirement ofadditional lifetime publication of Jensen's picture captioned 'Sex Predator' in flashing red letters surely is of some severe consequence, and requires some determination that it remains appropriate for the individual offender a decade after the crime. "^^^ Within two months of Wallace, the supreme court fiirther limited restrictions on sex offenders imposed by the residency restriction statute, while the court of appeals invalidated a local ordinance restricting sex offenders from city parks. In State v. Pollard^^^ the Indiana Supreme Court considered the reach ofa statute that prohibits a person convicted of certain sex-related crimes from residing within 1 ,000 feet of school property, a youth center, or a public park.^^"* Although the statute took effect July 1 , 2006, the State charged Pollard, who had owned 273. Id. 21A. 905 N.E.2d 384 (Ind. 2009). 275. Id. at 388-89. 276. Id 111. Id. at 389. 278. Mat 391-94. 279. Id at 394. 280. Id. at 396 (Sullivan, J., concurring in result). 281. Id 282. Id. at 398 (Boehm, J., dissenting). 283. 908 N.E.2d 1 145 (Ind. 2009). 284. Id. at 1 147 (citing Ind. Code § 35-42-4-1 1 (2006)). 20 1 0] CRIMINAL LAW 7 1 9 property within the prohibited area for twenty years.^^^ The court upheld the trial court's dismissal of the charge on ex post facto grounds because "it imposes burdens that have the effect ofadding punishment beyond that which could have been imposed when his crime was committed."^^^ In Dowdell v. City of Jejfersonville^^^ the court of appeals considered an ordinance that banned "sex offenders" from public parks and imposed fines or allowed criminal trespass prosecutions for violators?^^ A divided panel found the ordinance unconstitutional as applied to the plaintiff, whose duty to register as a sex offender had expired and who had sought to watch his minor son's Little League games.^^^ Although the ordinance allowed offenders to petition for exemptions, the "provisions are extremely narrow at best and illusory at worst," requiring extensive documentation and accompaniment by a close relative, while imposing limitations on applications and allowing denials for virtually any reason.^^^ Although Wallace and its progeny resolved some significant issues, others remain as sex offender registry cases play out in a number of different ways. First, how may a person have his or her name removed from the registry? A few counties appear to have taken a proactive view by removing anyone who committed a crime before the state created the registry.^^' In other counties, however, offenders will be required to litigate the issue in a trial court.^^^ Related to that issue, may the State prosecute someone with failure to register ifhis or her name is on the registry but should not be? This situation seems possible in counties that are not preemptively purging the registry, and the issue would presumably then need to be addressed through a defendant's motion to dismiss. J. Six-for-One Credit Timefor Credit Restricted Felons Although not a registry case, Upton v. State^^^ provides important relief to many convicted of sex offenses in Indiana. There, the Attorney General conceded, and the court of appeals found, that the 2008 amendments to the credit time statute were an ex post facto violation.^^"* Before 2008, all defendants were eligible to earn two days of credit for each day served in jail or prison.^^^ The 2008 amendment created a new class of"credit restricted felons" for certain child 285. Mat 1147-48. 286. Mat 1154. 287. 907 N.E.2d 559 (Ind. Ct. App.), trans, denied, 919 N.E.2d 552 (Ind. 2009). 288. Mat 562. 289. Mat 563-64. 290. Mat 571. 29 1 . JefFWiehe & Rebecca S. Green, Ruling Clouds Sex-Offender Registry, J.-Gazette (Fort Wayne, Ind.), Jan. 8, 2010, at Al, available at http://www.joumalgazette.net/article/20100108/ LOCAL/301089961/1002/LOCAL. 292. See id. ; see also Ind. Code § 1 1 -8-8-5 (Supp. 2009) (defining "sex or violent offender"). 293. 904 N.E.2d 700 (Ind. Ct. App.), trans, denied, 915 N.E.2d 994 (Ind. 2009). 294. Id at 705-06. 295. See Schumm, 2009 Recent Developments, supra note 170, at 939-40. 720 INDIANA LAW REVIEW [Vol. 43 :69 1 molesting or murder defendants who would instead earn one day for each six days imprisoned.^^^ Although the legislature amended the statute to apply to "persons convicted after June 30, 2008,"^^^ after Upton it may only apply to those who commit offenses after June 30, 2008.^^^ This date is essential to both prosecutors and defense lawyers as they negotiate plea agreements in cases involving multiple counts or single counts alleged to have occurred both before and after the date. Some counts may be eligible for two-for-one credit, while others will require defendants to serve nearly eighty-five percent oftheir sentence under the new statute. K. Expungement In State ex rel Indiana State Police v. Arnold^^'^ the Indiana Supreme Court offered important clarification ofthe expungement statute. Although the lengthy statute includes several requirements and exceptions, Arnold focused on subsection (f) of Indiana Code section 35-38-5-1, which states: After a hearing is held under this section, the petition shall be granted unless the court finds: 1 . the conditions in subsection (a) have not been met; 2. the individual has a record of arrests other than minor traffic offenses; or 3 . additional criminal charges are pending against the individual.^^^ In Arnold, the defendant sought expungement ofa 1993 robbery for which he was arrested but never charged.^^^ Because he had arrests for several offenses beginning in 1991, the State argued the trial court could not grant expungement under subsection (f)(2).^^^ The supreme court disagreed, focusing on the importance of the trial court's discretion emanating throughout the statute.^^^ Under the plain language of subsection (f), if "the trial court finds none ofthe above three factors, it must grant the petition for expungement."^^"^ If, under factor one, the conditions of subsection (a) have not been met—charges were dropped because ofmistaken identity, no offense was committed, or there was no probable cause^^^—^the trial court must deny the petition.^^^ When only (f)(2) or (f)(3) is present, however, "the statute is silent as to whether the court is required 296. Mat 940-42. 297. Upton, 904 N.E.2d at 704. 298. Id. at 706. 299. 906 N.E.2d 167 (Ind. 2009). 300. Id. at 169 (quoting Ind. Code § 35-38-5-l(f) (2008)). 301. Mat 167. 302. Id at 169. 303. IddXXlX. 304. Mat 170. 305. Ind. Code § 35-38-5- 1(a)(2) (2008). 306. Arnold, 906 N.E.2d at 170. 2010] CRIMINAL LAW 721 to deny the petition for expungement or whether it still has discretion to grant the petition."^^^ Because the statute gives "trial court[s] almost unfettered discretion to grant summarily or to deny summarily a petition for expungement" elsewhere in the statute, the court concluded the legislature could not have intended "to take away that discretion completely when the court decides to conduct a fact-finding hearing."^^^ Finally, the State's interpretation that trial courts have no discretion in the face of a record of arrests could lead to absurd results, namely the inability to expunge an arrest of a person arrested twice (a "record of arrests") when both arrests were the result of mistaken identity.^^^ 307. Id. 308. Mat 171, 309. Id.