In the 1978 movie Midnight Express, American hashish smuggler Billy Hayes serves a few years in a Turkish prison. Then he gets resentenced to life in prison — when he was only 37 days away from his release. The unfairness of the resentencing was obvious.
In Aleksandr Solzhenitsyn’s epic book, Gulag Archipelago, he describes Soviet prisoners within the last month of a ten-year sentence being resentenced — to 25 years — which he called a punishment for having the audacity to survive the first ten years.
I survived 18 years behind the walls of Indiana’s worst prisons, and now the State intends to resentence me — not when I’m close to release, as was done in Turkey and the USSR, but after I have fully served my sentence and after I have been successfully discharged from parole.
Of course I filed a Petition for Writ of Habeas Corpus, but it has been denied — denied by the same Magistrate Judge, James Kevin Snyder, who had me arrested at the prison gate and ordered me held in the Marion County Jail in Indianapolis without bond.
Despite not owing the State a single day, and having not committed any new offense, I could be jailed for years.
If you’re thinking that can’t possibly be legal, you would be right. At every level, the higher courts resoundingly disapprove of resentencing a defendant after he has been released: “There is no statute authorizing trial courts to resentence a defendant who has served his sentence and been released from the DOC” (Wampler v. State, 168 N.E.3d 1026, 1029, Ind. Ct. App. 2021). “A sentence fully served and satisfied cannot be the subject of resentencing” (Sizemore v. State, 531 N.E.2d 201, Ind. 1988). “Increasing a legal sentence after it has been fully served violates the Double Jeopardy clause” (U.S. v. Arrellanos-Rios, 799 F.2d 570, 576, 9th Cir. 1986). And, in the Supreme Court, when “the prisoner had fully performed, completed, and endured one of the alternative punishments,” the court’s “power to punish for that offence was at an end” (Ex Parte Lange, 85 U.S. 163, 176, 1873).
So what makes the State, and particularly Magistrate Snyder, think that resentencing me is permissible? A brief history of the case may explain it.
In 2005 I was tried for the attempted murder of an informant, was found guilty, and given 40 years — enhanced by an additional 30 years for a “habitual offender” finding. In 2020, I discovered that the two prior convictions the State used to enhance my sentence were not legally sufficient to qualify me as a habitual offender, so I petitioned for post-conviction relief in Snyder’s court.
Snyder denied relief, ignoring my properly authenticated documents while crediting the State’s uncertified papers. He rubber-stamped everything the State put before him and ignored my motions and objections.
I appealed, and on May 1, 2023, I won. The Indiana Court of Appeals meticulously detailed Snyder’s errors and declared I had presented sufficient evidence to prove I was not a habitual offender. The Court instructed Snyder “to issue an amended abstract of judgment consistent with this opinion.” (Evans v. State, 209 N.E.3d 472, 482, Ind. Ct. App. 2023).
Simple order. Amend the sentence to only 40 years. Nothing more. Nothing less.
The Attorney General grumbled in a Petition for Rehearing that this ruling would let me out “13 years early,” but he did not object to the relief granted, nor did he attempt to transfer the case to the Indiana Supreme Court. In legal circles that’s called a “waiver” of the issue.
The opinion was certified on July 25, 2023, and like Billy Hayes, I anticipated an imminent restoration of my freedom — the next day, probably. People were called, plans were made. Lawyers congratulated me for doing what no pro se prisoner had ever done in Indiana, winning a release on a successive post-conviction appeal. I was packed and ready to go.
But, on July 26, 2023, Snyder did what no judge in Indiana has ever done. He refused to follow the crystal-clear instructions from the Court of Appeals. Instead, he ordered me transported for a hearing.
Take note, nobody officially requested a hearing. Nothing was filed by either party. The State had given up on the case.
Snyder took it upon himself to set a hearing to allow the State to argue that I should be retried and resentenced on the habitual under authority of Jaramillo v. State, 823 N.E.2d 1189, Ind. 2005, which allows the State to retry the habitual whenever it has been overturned on a direct appeal due to insufficient evidence.
Some quick bullet points on why Jaramillo is inapplicable:
- My case wasn’t overturned due to insufficient evidence, but because there was sufficient evidence to prove there was no factual basis for the habitual allegation.
- My win on the PC appeal constitutes an acquittal, and a defendant cannot be retried after an acquittal.
- This wasn’t a direct appeal, it was a PC appeal.
- The State waived the issue.
- Jaramillo is irrelevant, because Wampler dictates that I cannot be resentenced.
It’s the Wampler case that controls everything here. In Wampler, the defendant overturned the habitual on a PC appeal. His judge immediately obeyed the higher court and amended the judgment, resulting in Wampler’s immediate release because, like me, he had fully served the underlying sentence. The State argued for resentencing, but in an interlocutory appeal the Court of Appeals declared that once a defendant has been released, the trial court has no authority to resentence him.
It’s just that simple.
It took Snyder nearly two months to amend my judgment, during which time he set a date to retry the habitual, which he allowed the State to amend to include a 40-year-old charge. I actually left prison on September 13, 2023, having fully served my sentence as of November 15, 2021. My parole was discharged on November 15, 2023. I’m over two years past my release date, yet still serving time.
Snyder and Prosecutor Matt Barloh are now of the opinion that since they set a retrial date before I physically walked out of prison that my Wampler argument is void. As if Snyder’s refusal to comply with the Court of Appeals created a right to resentence that otherwise would not exist. That’s like claiming a right to the gasoline you put into a stolen car.
I’ll give credit to Barloh for being candid, saying in open court, “I didn’t want this case, I didn’t ask for this case,” but that he only took it as “a favor for Janna Skelton,” the original prosecutor in 2005. Curiously, Snyder worked in the prosecutor’s office as well in 2005. But if Skelton recently dialed him up, he of course isn’t volunteering that fact.
Like Wampler, I have an interlocutory appeal, which may take a year or more. Unlike Wampler, I am jailed without bond while I wait. And despite my confidence in the issues, I am aware, like Billy Hayes, that the outcome of any legal proceeding is never a certainty.
Whatever the outcome, will Snyder obey the higher court’s instructions? Or will we have to do this again? And again? And again?
