The honorable Judge Joseph Trout was elected in a tight race and even had some controversy around his campaign.

Big shoes were to be filled and this attorney of 25 years came in ready for the job.

I asked Judge Trout to help educate me on how things work from behind his desk in the courts and he was more than willing to help me out.

The following interview will most likely need to be in four parts. I will be explaining in detail how judgments are made and sentences given. I will also have a part explaining the differences between differing types of crimes and punishments.

Judge Trout also explained to me how Public Defenders and the Prosecutors are paid. Also, the benefit of plea-bargaining and the success the courts have regarding imprisoning felons and allowing them the chance to be part of an aggressive drug treatment program via the jail called the CLIFF program.

We will also discuss briefly, in home incarceration and the money that is earned/saved via that as well.

We will start with sentencing. I am going to give you direct quotes from Judge Trout and let the pro teach us all. He provided me with quite a bit of paperwork that I was hoping to be able to offer you via PDF format, but I was informed that it would not be possible. If you are interested in copies of the paperwork, I will be happy to send you copies via e-mail. Simply e-mail me at the address provided below and I will happily send you copies and thanks in advance.

My first question to Judge Trout as it has been to everyone interviewed in this was, "Is the drug problem in Clay County getting worse, staying the same or decreasing?"

"Yes it is worse. I have only been here two years, but I have been amazed at the number of drug cases processed in this court and the number of crimes of dishonesty that are related to the use of drugs," Trout said. "I would say without a doubt, methamphetamine is the No. 1 factor contributing to crime in Clay County."

Knowing this, let us find out now how a judge determines the sentencing and the factors involved in setting said penalty for crimes committed. Let us first define the differing factors in determining judgments. There are mitigating and aggravating factors.

Mitigating factors, by definition, are information about a defendant or the circumstances of a crime that might tend to lessen the sentence for the crime with which the person is charged.

Aggravating factors, by definition, are any fact or circumstance that increases the severity or culpability of a criminal act. Aggravating factors include recidivism, lack of remorse, amount of harm to the victim, or committing the crime in front of a child, among many others. The recognition of particular aggravating factors varies by jurisdiction.

"For every sentence in Indiana and every crime, be it an A, B, C, or D felony all the way to murder, this legislature sets out the penalty," Trout said. "There is what used to be called the Presumptive Sentence. By definition, this means where the judge is supposed to start and the sentence they must give as they find from aggravating and mitigating factors, that a different sentence would be more appropriate.

"There was a Supreme Court of the United States case a few years ago that said any state that has a statutory scheme where the judge as opposed to the jury determines all the aggravating and mitigating factors and enhances a person's sentence, that statutory sentencing scheme is unconstitutional.

"So, to get away from that, our legislature set up ranges for penalties," Trout continued. "So on a D felony, the advisory sentencing is a year-and-a-half, the maximum is three years."

Trout was kind enough to send me a document that gives all the advisory sentencing guidelines post that Supreme Court decision and I will do my best to recreate the document for you.

"For years, there has been a mix up in the paper where these sentences were added up incorrectly," Trout said. "If a person was charged with, for example, five counts, they would add all these sentences together and say that this person was facing 500 years and that is not accurate. When the sentencing would be reported, and not all of them do, it would look like we were betraying the enforcement of law. In reality, what they are really doing is following the law and giving an appropriate sentence that will hold up under appeal.

"What we do is start with that advisory sentence on every case and then we have to look for aggravating and mitigating circumstances (factors). The most common aggravating circumstance (factor) is a person's criminal record. Another factor is if they successfully completed any other prior probation or if they didn't. Was the crime committed while out on bond or otherwise violated your bond or the nature of your character? It does get complicated.

"Basically, you look for things that would make this case more heinous than the average case. Two of them are whether or not anyone got hurt and the extent of the loss.

"I can give an example of that. You have two people charged with burglary, one person broke into a person's garage and took his lawnmower, the other guy broke into this garage and took everything in there. The extent of the loss can be an aggravating factor. Even though they are the exact same kind of crime, I am allowed to consider the extent of the loss an as aggravating factor. Mitigating factors are usually the things like, the hardship on the family of the defendant, the age of the defendant, the lack of loss or harm to anyone is a mitigating factor.

"Now, if it's a plea agreement with the set sentence, let me give an example. If a person pleads guilty pursuant to a plea agreement and they are going to receive four years in the Department of Corrections, with one year suspended and one year of probation. There are no mitigating or aggravating factors involved in this case because of the plea agreement. You get exactly what you bargained for. I am only allowed to accept it or reject it.

"I am strictly forbidden by law to usurp the role of the Prosecutor in regard to negotiating with the defense. For instance, let's say that the Prosecutor and the defendant have a plea bargain and it calls for that four years. They present that bargain to me in what is called a 'plea hearing,' and I take it under advisement. If I decide to reject it, I can't bring the parties back in here (to his chambers) and say, 'Now, the only thing I will accept is this, this or this on the agreement.' The Supreme Court has said that judges are not to be prosecutors and you have to resist that temptation because they do allow you to tell the prosecutors what's wrong with their plea. In a general way, you have to tell them that is's too lenient or needs additions made to it.

"I cannot dictate to them the exact terms. I can only tell them in general terms why I don't like it. They go back and start over again, come back and come back as many times necessary to get something agreeable.

"That is how sentencing is done. You start with the advisory and you can go anywhere between the range, but you have to be able to justify it via your analysis of aggravating and mitigating factors. If you don't do that, you will be reversed and if you give a sentence that the Appellant Court deems inappropriate, you will be reversed and they have an absolute right pursuant to Appellate Rule B to review any sentence and change it.

"So far, I have been appealed on five or six sentences and they haven't disagreed with me yet, so I think it's going pretty well as far as my understanding to apply the aggravating and mitigating factors in sentences."

To recap: If it's an open plea, and open plea means that the Judge has total discretion. An open plea can be (the person comes in and pleads guilty) then, it's completely up to the Judge and he must go through the whole analysis explained above. There are also arranged pleas where the Prosecutor and defense come into court with an agreement and the sentence will be no more than a set amount of years. It is still up to the Judge to go through that process when giving any sentence.

I hope this helps explain why sentencing is handled the way it is and helps clear up any misconceptions there may be out there. Stay tuned for the next part of my interview with Judge Trout, where we will be discussing drug convictions and how they are handled from the Judge's perspective.

Stay tuned ...

Karen Meister may be contacted at ksframeofmind@yahoo.com.