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The Indiana Court of Appeals affirmed the defendant’s sentence that they had increased on appeal in March in an opinion
on rehearing today and addressed the characteristics of an Indiana Appellate Rule 7(B) review.
In Jeffrey
E. Akard v. State of Indiana, No. 79A02-0904-CR-345, Jeffrey Akard asked the court to rehear his appeal because he
believed the Court of Appeals’ upward revision of his sentence for rape and other convictions violated the party presentation
principle. The principle is a general rule that courts rely on the parties to frame the issues for decision and that the act
of a court raising an issue sua sponte is normally reserved for situations requiring protection of pro se litigants’
rights.
In an March 30, 2010, opinion, the appellate court decided to increase Akard’s 93-year sentence to 118 years because
of the heinous, violent acts he committed against his victim. The judges reviewed his sentence under Appellate Rule 7(B).
By requesting a review under Rule 7(B), in light of McCullough v. State, Akard had the opportunity to present his
arguments under the rule’s standard knowing that McCullough allowed for an appellate court to revise a sentence
upward or downward, wrote Judge L. Mark Bailey. Akard also was the one to present the issue and laid the framework for the
sentence revision.
Akard also argued that parties can’t address the potential double jeopardy issues implicated by a revised sentence
under Rule 7(B) revisions.
“This argument evidences a miscomprehension of the mechanics of double jeopardy and 7(B) review of an aggregate sentence,”
wrote the judge. “Double jeopardy is not an issue of sentencing error. Rather, it potentially arises at the moment judgments
of conviction are entered.”
Double jeopardy or any other issue that can be raised independently isn’t relevant to the independent appellate review
of an aggregate sentence under Rule 7(B). The only constraint is the revision must be in the legal range set by the legislature,
and Akard’s increased sentence fell in that range.
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