sentence error in Indiana

2016Court of Appeals of Indiana | Memorandum Decision 90A05-1604-CR-931 | November 23, 2016 Page 10 of 14 [18] Moreover, even if we believed that the court’s failure to identify Riddle’s participation in these programs as a mitigator was an irregularity constituting an abuse of discretion, “we have the option to remand to the trial court for clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at the appellate level.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016) (quoting

2016“Where we find an irregularity in a trial court’s sentencing decision, we have the option to remand to the trial court for clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at the appellate level.” McElfresh v. State, 51 N.E.3d 103, 122 (Ind.2016),(quoting Cotto v. State, 829 N.E.2d 520, 525 (Ind.2005)).

2020Ramos v. State, 869 N.E.2d 1262, 1264 (Ind. Ct. App. 2017) (citing Merlington v. State, 814 N.E.2d 269, 273 (Ind. 2004)).

2017Indiana Appellate Rule 66(A) provides, “No error or defect in any ruling or order or in anything done or omitted by the trial court or by any of the parties is ground for granting relief or reversal on appeal where its probable impact, in light of all the Court of Appeals of Indiana | Memorandum Decision 09A02-1605-CR-1148 | February 21, 2017 Page 6 of 8 evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” “When we find an irregularity in the trial court’s sentencing decision, we may remand to the trial court for a clarification or a new sente

2004Brown, 783 N.E.2d at 1129 ; Bivins v. State, 642 N.E.2d 928, 957 (Ind. 1994).

2004Brown, 783 N.E.2d at 1129 ; Bivins v. State, 642 N.E.2d 928, 957 (Ind.1994).

2020See id. [43] “When we find an irregularity in the trial court’s sentencing decision, we may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence.” Rios v. State, 930 N.E.2d 664 (Ind. Ct. App. 2010).

2019Accordingly, the order sentencing Boger to serve consecutive sentences is reversed. [50] “When we find an irregularity in the trial court’s sentencing decision, we may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence.” Rios, 930 N.E.2d at 669 .

2020We have the authority to “affirm the sentence if the error is harmless.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016).

2016Court of Appeals of Indiana | Memorandum Decision 90A05-1604-CR-931 | November 23, 2016 Page 10 of 14 [18] Moreover, even if we believed that the court’s failure to identify Riddle’s participation in these programs as a mitigator was an irregularity constituting an abuse of discretion, “we have the option to remand to the trial court for clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at the appellate level.” McElfresh v. State, 51 N.E.3d 103, 112 (Ind. 2016) (quoting

2004See Means, 807 N.E.2d at 776 ; see also Sherwood v. State, 749 N.E.2d 36, 39-40 (Ind.2001) ("'Where we find an irregularity in a trial court's decision, we have the option to remand to the trial court for a clarification or new sentencing determination; to affirm the sentence if the error is harmless; or to weigh the proper aggravating and mitigating circumstances independently at the appellate level.").

2004See Means, 807 N.E.2d at 776 ; see also Sherwood v. State, 749 N.E.2d 36, 39-40 (Ind.2001) ("Where we find an irregularity in a trial court's decision, we have the option to remand to the trial court for a clarification or new sentencing determination; to affirm the sentence if the error is harmless; or to weigh the proper aggravating and mitigating circumstances independently at the appellate level.").

2004The felony murder conviction should have been vacated instead of merged. 7 See also Abron v. State, 591 N.E.2d 634, 637 (Ind.Ct.App.1992) (conviction even without a sentence is in violation of double jeopardy and must be vacated).

2000Abron v. State, 591 N.E.2d 634, 636-37 (Ind.Ct.App.1992).

2020“Where we find an irregularity in a trial court’s sentencing decision, we have the option to remand to the trial court for clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances Court of Appeals of Indiana | Memorandum Decision 19A-CR-387 | November 5, 2020 Page 6 of 7 independently at the appellate level.” Clippinger v. State, 54 N.E.3d 986, 992 (Ind. 2016).

2018Clippinger v. State, 54 N.E.3d 986, 992 (Ind. 2016). [9] At the start of the sentencing hearing, the trial court recognized that Britain had “entered a plea of guilty to Count 1, Fraud, a Level 6 Felony.” Tr.

2002See Bivins v. State, 642 N.E.2d 928, 957 (Ind.1994), cert. denied, 516 U.S. 1077 , 116 S.Ct. 783 , 133 L.Ed.2d 734 (1996).

2001See Bivins v. State, 642 N.E.2d 928, 957 (Ind. 1994), cert. denied, 516 U.S. 1077 , 116 S.Ct. 783 , 133 L.Ed.2d 734 (1996).

2002See Bivins v. State, 642 N.E.2d 928, 957 (Ind.1994), cert. denied, 516 U.S. 1077 , 116 S.Ct. 783 , 133 L.Ed.2d 734 (1996).

2001See Bivins v. State, 642 N.E.2d 928, 957 (Ind.1994), ce rt. denied, 516 U.S. 1077 , 116 S.Ct. 788 , 133 L.Ed.2d 734 (1996).

2018There are three options, then, that we must consider: "(1) remand the matter to the trial court for clarification or a new sentencing determination; (2) affirm the sentence if the error is harmless; or (3) independently reweigh the proper aggravating and mitigating circumstances." Id.

2018Brown v. State, 783 N.E.2d 1121, 1129 (Ind. 2003).

2020Id.

2020See id. [43] “When we find an irregularity in the trial court’s sentencing decision, we may remand to the trial court for a clarification or a new sentencing determination, or affirm the sentence if the error is harmless, or impose a proper sentence.” Rios v. State, 930 N.E.2d 664 (Ind. Ct. App. 2010).

2002The post-conviction relief process is also open to the "raising [of] issues not known at the time of the original trial and appeal or for some reason not available to the defendant at that time." Kimble v. State, [ 451 N.E.2d 302, 303-304 (Ind.1983)].

1985The post-conviction relief process is also open to the "raising [of] issues not *1263 known at the time of the original trial and appeal or for some reason not available to the defendant at that time." Kimble v. State, (1983) Ind., 451 N.E.2d 302, 308-804 .

2020Ramos v. State, 869 N.E.2d 1262, 1264 (Ind. Ct. App. 2017) (citing Merlington v. State, 814 N.E.2d 269, 273 (Ind. 2004)).

2020See App. R. 7(B); Norris v. State, 113 N.E.3d 1245, 1255 (Ind. Ct. App. 2018).

2019If the reviewing court found “irregularity in the lower court’s sentencing decision,” the court could elect among options, including “to remand to the trial court for a clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at the appellate level.” Id. at 238 . 2 On June 24, 2004, the Supreme Court of the United States handed down Blakely v. Washington, 542 U.S. 296, 301 (2004), holding that the Sixth Amendment right to a jury trial required that “[o]ther than the fact of a

2019Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied 1 (citing Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993)).

2019Treece v. State, 10 N.E.3d 52, 59 (Ind. Ct. App. 2014), trans. denied 1 (citing Mitchell v. State, 619 N.E.2d 961, 964 (Ind. Ct. App. 1993)).

2018It is unclear how Pond’s motion fits within any of these conditions, and Pond has not clarified this matter. [20] Moreover, even if we address this issue, Pond’s argument fails. “[A] clear and unequivocal admission of fact, or a formal stipulation that concedes any element of a claim or defense, is a binding judicial admission.” Bandini v. Bandini, 935 N.E.2d 253, 265 (Ind. Ct. App. 2010).

2017See Sandleben v. State, 29 N.E.3d 126, 136 (Ind. Ct. App. 2015) (concluding that Sandleben waived inappropriate sentence argument by failing to present cogent argument on that issue), trans. denied.

2014See Pizano I, 33A01-1302-MI-65 *2 (citing Taylor v. Finnan, 955 N.E.2d 785, 789 (Ind. Ct. App. 2011) (citing to Hawkins v. Jenkins, 268 Ind. 137, 140-41 , 374 N.E.2d 496, 498-99 (1978) for the proposition that when a person is not entitled to immediate release, a sentence challenge is properly considered one for post-conviction relief and not habeas corpus)). 3 We note that our review of the instant matter is somewhat hampered by Pizano’s failure to include a 3 awarded all credit time to which he was entitled and dismissed the action as moot.

2014See Pizano I, 33A01-1302-MI-65 *2 (citing Taylor v. Finnan, 955 N.E.2d 785, 789 (Ind. Ct. App. 2011) (citing to Hawkins v. Jenkins, 268 Ind. 137, 140-41 , 374 N.E.2d 496, 498-99 (1978) for the proposition that when a person is not entitled to immediate release, a sentence challenge is properly considered one for post-conviction relief and not habeas corpus)). 3 We note that our review of the instant matter is somewhat hampered by Pizano’s failure to include a 3 awarded all credit time to which he was entitled and dismissed the action as moot.

2014See Pizano I, 33A01-1302-MI-65 *2 (citing Taylor v. Finnan, 955 N.E.2d 785, 789 (Ind. Ct. App. 2011) (citing to Hawkins v. Jenkins, 268 Ind. 137, 140-41 , 374 N.E.2d 496, 498-99 (1978) for the proposition that when a person is not entitled to immediate release, a sentence challenge is properly considered one for post-conviction relief and not habeas corpus)). 3 We note that our review of the instant matter is somewhat hampered by Pizano’s failure to include a 3 awarded all credit time to which he was entitled and dismissed the action as moot.

2006"Where we find an irregularity in a trial court's sentencing decision, we have the option to remand to the trial court for a clarification or new sentencing determination, to affirm the sentence if the error is harmless, or to reweigh the proper aggravating and mitigating circumstances independently at the appellate level." Baber v. State, 842 N.E.2d 343, 345 (Ind.2006), cert. denied, - U.S. -, 127 S.Ct. 128 , 166 L.Ed.2d 95 (2006).

2004See Means, 807 N.E.2d at 776 ; see also Sherwood v. State, 749 N.E.2d 36, 39-40 (Ind.2001) ("'Where we find an irregularity in a trial court's decision, we have the option to remand to the trial court for a clarification or new sentencing determination; to affirm the sentence if the error is harmless; or to weigh the proper aggravating and mitigating circumstances independently at the appellate level.").

2004See Means, 807 N.E.2d at 776 ; see also Sherwood v. State, 749 N.E.2d 36, 39-40 (Ind.2001) ("Where we find an irregularity in a trial court's decision, we have the option to remand to the trial court for a clarification or new sentencing determination; to affirm the sentence if the error is harmless; or to weigh the proper aggravating and mitigating circumstances independently at the appellate level.").