TERRELL v. STATE (2026)

[1] Jessika Aarius Terrell was convicted of three counts of Level 5 felony kidnapping and three counts of Level 6 felony interference with custody. The trial court imposed a ten-year sentence, with four years to be served in the Department of Correction (DOC) and six years suspended to probation. Terrell appealed, and we held that the convictions for both kidnapping and interference with custody constituted double jeopardy. Therefore, we reversed the interference-with-custody convictions and remanded for resentencing on the kidnapping convictions. Terrell v. State, No. 24A-CR-3137, 2025 WL 3281215 (Ind. Ct. App. Nov. 25, 2025) (mem.).

[2] On remand, the trial court imposed a nine-year sentence, with four years to be served in the DOC and five years suspended to probation. In doing so, the court found as an aggravating factor Terrell's “poor institutional conduct since being committed to the Department of Correction.” Tr. p. 8. The court relied on a DOC progress report indicating that Terrell “had ten different write ups” in 2025. Id.

[3] Terrell appeals again, arguing that a trial court resentencing a defendant after a reversal on direct appeal is limited to the record as it existed at the time of the original sentencing and cannot consider any misconduct occurring after that time. She is incorrect. We have held that a trial court “revising a sentence following a successful direct appeal or post-conviction challenge” may consider evidence of a defendant's post-sentencing behavior, good or bad. Ousley v. State, 807 N.E.2d 758, 760-61 (Ind. Ct. App. 2004); see also Porter v. State, No. 25ACR-1708, 2026 WL 820651, at *4 (Ind. Ct. App. Mar. 25, 2026) (mem.). The resentencing in Ousley followed a post-conviction-relief proceeding, not a direct appeal as in this case, but the opinion treats such proceedings the same.¹

[4] Terrell also argues that the fact she had “write ups” in the DOC isn't conclusive proof that she actually engaged in any misconduct. She asserts:

The court does not know if the DOC conduct violations listed in the report have been adjudicated, whether they are on appeal, whether Terrell was already sanctioned, whether they come with any penalty at all, whether Terrell was afforded her rights during the disciplinary process, or what the specifics of the conduct were. Based on the bare allegations in Terrell's DOC report, the trial court had no way of knowing what the procedural posture of those allegations was.

Appellant's Br. p. 16. But when the DOC report was discussed at the resentencing hearing, Terrell didn't deny engaging in misconduct or claim that she was challenging the allegations. Tr. pp. 6-8. To the contrary, her attorney acknowledged that her “performance has not been perfect at the Department of Correction.” Id. at 6.

[5] Terrell has not shown that the trial court erred or abused its discretion by considering evidence of her conduct after the original sentencing.

[6] Affirmed.

FOOTNOTES

1.   As Terrell notes, a panel of this Court held in Ingle v. State that a trial court conducting resentencing after a reversal on direct appeal could not consider evidence of the defendant's good behavior after the original sentencing. 766 N.E.2d 392, 395 (Ind. Ct. App. 2002), trans. denied. But the panel relied on Edwards v. State, which involved a resentencing after a successful motion to correct erroneous sentence under Indiana Code section 35-38-1-15. 518 N.E.2d 1137, 1141 (Ind. Ct. App. 1988), trans. denied. Such a proceeding is much more limited than a resentencing after a successful direct appeal or PCR petition. See Ousley, 807 N.E.2d at 760-61. Therefore, we believe Ingle was wrongly decided.

Vaidik, Judge.

Altice, J., and Foley, J., concur.