News From Terre Haute, Indiana

Local & Bistate

June 9, 2014

Child abuse plea deal overturned

Appeals court rejects 10-year sentence for harm to 3 teens

TERRE HAUTE — An appeals court has overturned the 10-year sentence of a Terre Haute man convicted of abusing his adopted children.

The result could be worse than the original sentence for Larry D. Russell Jr., 40, who now could face a maximum sentence of 68 years in prison. The ruling, issued Thursday by the Indiana Court of Appeals, called the 10-year negotiated sentence an incorrect application of state sentencing rules.

Russell faced 11 felony counts for the neglect and abuse of three adopted teenagers in 2012. The teens were kept locked in a bedroom of the Russell home in Terre Haute without access to food or water, a bathroom, or comforts of home for extended periods, and were physically abused.

Through a plea agreement in Vigo Superior Court 1, Russell pleaded guilty to five counts of neglect of a dependent as a class-C felony and two counts of class-C felony criminal confinement. Four class-D felonies were dismissed. The plea agreement included a sentencing cap of 10 years, but left the sentence up to trial court’s discretion.

Judge John Roach in November 2013 sentenced Russell to eight years in prison for each of the three victims, for a 24-year total sentence. Eight years is the maximum sentence for a class-C felony. However, noting the sentencing cap, Roach ordered that Russell serve a 10-year prison sentence.

In December, Russell filed an appeal of his sentence, asserting that the Department of Correction is treating him as if he was serving a 24-year sentence with all but 10 years suspended. “This has negatively affected his classification status, requiring him to serve his sentence in a more restrictive setting that he otherwise would have,” his appeal argues.

Both the plea agreement and Roach’s ruling noted that “pursuant to the limitation imposed by IC 35-50-1-2,” Russell’s aggregate consecutive sentence was limited to 10 years because all of the charges stem from one ongoing episode of abuse.

Appeals Court Judge Edward Najam states that the sentencing order of 10 years is clear; however, Najam disagreed with that application of the sentencing rule.

Najam wrote in his opinion that, based on the facts of the case, the 10-year sentence conflicts with the law cited and is illegal. The offenses by Russell do not constitute a single “episode” of abuse, but multiple episodes over an extended period and are not subject to the sentencing limitations imposed by the statute.

The judge ordered the trial court to give Russell the option of proceeding with the current plea agreement without the illegal sentencing limitation, which means Russell could face up to 56 years total on the seven charges in the plea agreement. If Russell does not exercise that option within 30 days of the appeals court ruling, the plea agreement is vacated and the case goes back to the trial court with the 11 charges originally charged, which carry up to a 68-year sentence if all of the convictions run consecutively.

Vigo County Prosecutor Terry Modesitt said Monday that even though the appeals court calls the negotiated sentence illegal, he is pleased with the opportunity to seek a longer prison sentence for Russell.

Modesitt said that not only his office felt that it was limited in the sentence that could be imposed on Russell.

Because of the young victims in the case could not give dates on when the alleged abuse occurred, he said, it complicated the case as to what acts by Russell were separate incidents.

“We talked to the Indiana Prosecutor’s Council and to two judges as we were working on the plea agreement,” Modesitt said, “and they agreed that under the law, he could not receive more than the advisory sentence of the next highest charge.”

Ten years is the advisory sentence for a class-B felony, which is one class higher than the class-C felonies with which Russell was convicted.

“We are required ethically to investigate what the proper interpretation of the law will be,” Modesitt said of the sentencing. “We can’t just go with what we want for sentencing. We honestly did what we thought was statutorily allowable.”

The appeals court ruling sends the case back to the Division 1 court. However, Russell’s defense also has the right to ask the Indiana Supreme Court to rule on the Appeals Court decision.

Meanwhile, the sentence imposed on Russell’s wife, Nikki, who accepted a plea agreement to resolve the 14 criminal counts stemming from the same neglect and abuse case, remains under consideration by the Indiana Court of Appeals.

Reporter Lisa Trigg can be reached at 812-231-4254 or lisa.trigg@tribstar.com. Follow her on Twitter

@TribStarLisa.

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