News From Terre Haute, Indiana

Local & Bistate

June 15, 2014

Legal ripples follow overturn of plea deal

Reversal of 10-year sentence for abuse of 3 teens over 3 months may establish court precedent

TERRE HAUTE — The Indiana Supreme Court will likely be petitioned to consider a Vigo County child abuse case that has had an unexpected reversal with the Indiana Court of Appeals.

Defense attorney Cara Wieneke told the Tribune-Star on Friday that she plans to file a petition to transfer the case of Larry D. Russell Jr. to the state’s highest court following the appeals court reversal of Russell’s 10-year prison sentence. Appeals Court Judge Edward Najam Jr. called part of Russell’s negotiated plea agreement “illegal” in a June 5 opinion, indicating that Russell would have otherwise received a 24-year sentence.

“I was disappointed in the decision and surprised, to say the least,” Wieneke said.

Russell was arrested in November 2012 after his adopted son escaped from an upstairs bedroom of Russell’s Terre Haute home where the teen and two other adopted children had been confined, starved and mistreated. A police investigation determined that Russell and his wife Nikki had kept the teens locked in the room without access to food or water, a bathroom, or comforts of home for an extended period.

Vigo Superior Court 1 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 during his sentencing statement, Roach ordered that Russell serve a 10-year prison sentence. Russell appealed his sentencing a month later.

Najam’s recent opinion, which was affirmed by Chief Judge Nancy Vaidik and Judge Elaine Brown, calls for the trial court to consider up to a 56-year prison sentence for Russell, or to vacate the plea agreement that had a sentencing cap of 10 years in exchange for Russell’s guilty plea to seven class-C felony charges.

Wieneke said she questions whether the court of appeals has the authority to look at the sentencing, because it was not an issue she raised in the appeal.

Russell’s appeal concerned his classification as an offender in the Indiana Department of Correction. He contended that he was being treated as if he was serving a 24-year sentence with all but 10 years suspended. Wieneke said that stricter classification resulted in more security, fewer freedoms and less opportunity to earn credit time. Russell is being housed at the Correctional Industrial Facility at Pendleton.

On those arguments, however, the appeals court agreed with the local trial court that the sentencing order and abstract of judgment are clear in that Russell received only a 10-year sentence.

It is then that Najam’s opinion takes on a different issue — whether Russell’s 10-year sentence was based on an erroneous application of a state law that limits consecutive prison terms for multiple felony convictions arising out of a single episode of criminal conduct.

Vigo County Prosecutor Terry Modesitt told the Tribune-Star that while the neglect and abuse of the three teenage victims in the case was horrific, and that he wanted a longer prison sentence for Russell, he felt that the sentence must be capped at 10 years, according to a state sentencing rule.

Indiana Code Section 35-50-1-2(c) provides that the total of the consecutive terms of imprisonment for multiple felony convictions arising out of a single episode of criminal conduct shall not exceed the advisory sentence for a felony that is one class of felony higher than the most serious of the felonies for which the defendant is convicted. An “episode of criminal conduct” refers to offenses or a connected series of offenses that are closely related in time, place and circumstance.

Because Russell was convicted of seven class-C felonies, and the advisory sentence for a class-B felony is 10 years, the plea agreement was negotiated with a 10-year sentencing cap. A class-C felony has a sentencing range of 2 to 8 years.

Modesitt said he consulted with the Indiana Prosecuting Attorneys Council and was advised that the 10-year sentencing cap applied to the Russell plea agreement. When contacted by the Tribune-Star, IPAC confirmed that discussion with Modesitt, but declined to comment due to the pending nature of the case.

“Because this case is going back to the lower court, until it’s fully resolved, we don’t want to make a comment,” said Connie Smith of IPAC.

Modesitt said that because the victims in the case were unable to provide specific dates on when the abuse occurred, it would be difficult to prove in a trial that the abuse was not a single episode of criminal conduct.

Appeal attorney Wieneke agreed with Modesitt, and said that she understood that the trial defense attorney would have attacked the dates of when the incidents occurred.

Najam’s opinion, however, states that the factual basis for Russell’s guilty plea included that multiple acts of neglect and confinement occurred repeatedly during three months prior to the victim’s escape from the house.

“Russell’s crimes do not constitute an episode of criminal conduct,” Najam writes. “Therefore, the law does not require that Russell’s sentence be limited.”

The appeals court opinion has caught the attention of the Indiana legal community. The opinion was reported in The Indiana Lawyer and the Indiana Law Blog.

Joel Schumm, clinical professor of law at Indiana University’s Robert H. McKinney School of Law in Indianapolis, said the appeals court opinion was “somewhat uncharted territory.”

“It is fairly uncommon to reverse a trial court and to make things worse for the defendant,” Schumm said, noting that when sentences are reversed, some sentencing relief often results.

The 10-year sentence itself in the Russell case appears to be legal, Schumm said, because a 10-year sentence falls within the sentencing parameters allowed by law. It is when the 10-year cap is stated as the limit allowed by the sentencing rule that the justification for the cap falls apart.

Schumm agreed that Modesitt’s concern about the dates of the crimes could have presented a problem for the prosecution at trial.

“It’s a valid concern if it was a case he was going to take to trial,” Schumm said. “It’s certainly something the defense could poke holes in.”

The resolution of the case through the plea agreement was not out of the ordinary, he noted. In fact, the sentencing cap was an incentive for Russell to plead guilty, and allowed the prosecution to avoid putting the teenage victims through the stress of a trial by reliving their experiences. Without the cap, there would not have been much incentive for Russell to plead guilty.

Schumm also said that he would be surprised if defense attorney Wieneke does not seek to transfer the case to the supreme court. This appeals court opinion is the type of case that the supreme court can get into because of the legal precedence that can be set.

However, Russell’s attorney has 30 days to petition for that transfer, and the state attorney general’s office has 20 days to file its response. It could take up to three months before the supreme court receives the case transfer request. If the court accepts the transfer, then it can take several more months before an opinion is issued.

If the supreme court does not accept the transfer, the case goes back to the trial court for resentencing or reconsideration of the plea agreement, as decided by the appeals court.

Modesitt told the Tribune-Star that he is pleased that because the 10-year sentencing cap is no longer mandated in this case, a harsher sentence could be sought.

Wieneke said she is concerned about that possibility, for her client’s sake.

“The 10-year sentence was a gift, and I think he [Russell] realizes that now,” she said.

Reporter Lisa Trigg can be reached at 812-231-4254 or Follow her on Twitter @TribStarLisa.

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