Russell v. State

234 N.E.3d 829

Jerry E. RUSSELL, Sr., Appellant/Defendant,

v.STATE of Indiana, Appellee/Plaintiff.

Supreme Court Case No. 21S-LW-451

Supreme Court of Indiana.

Argued: October 31, 2023

Filed June 3, 2024

Appeal from the Greene Superior Court, No. 28D01-9810-CF-624, The Honorable Marc R. Kellams, Special Judge ATTORNEY FOR APPELLANT: Lisa Maimer Johnson, Law Office of Lisa Malmer Johnson, Brownsburg, Indiana

ATTORNEYS FOR APPELLEE: Theodore E. Rokita, Attorney General of Indiana, Megan M. Smith, Sierra A. Murray, Office of the Attorney General, Indianapolis, Indiana

Molter, Justice.

Twenty-five years ago, a jury convicted Jerry E. Russell Sr. of murdering Pamela Foddrill and committing other heinous crimes. He was sentenced to life imprisonment without parole ("LWOP") for the murder conviction, and he received consecutive sentences of fifty years for conspiracy to commit murder, fifty years for criminal deviate conduct, and twenty years for criminal confinement. On his direct appeal, we affirmed Russell’s convictions for murder and conspiracy to commit murder, and we affirmed his LWOP sentence. But we modified the judgment and sentences for the criminal confinement and criminal deviate conduct convictions with the result that Russell was sentenced to LWOP plus seventy-three years.

Russell then filed a Petition for Post-Conviction Relief ("PCR") in March 2003. A little over sixteen years later, in September 2019, he agreed with the State to dismiss his petition with prejudice in exchange for resentencing. Then, after receiving extensive evidentiary submissions and holding a resentencing hearing spanning three days, the resentencing court entered a detailed Order on Resentencing that sentenced Russell to LWOP plus seventy-three years. Russell appealed that order directly to our Court under Appellate Rule 4(A)(1), and we now affirm.

Facts and Procedural History

I. Factual Background

In 1995, Pamela Foddrill lived in Linton, Indiana, with her mother, Irene. Foddrill was an intellectually disabled forty-four-year-old woman who was unmarried and had never dated. Neither Foddrill nor her mother drove, so the two would walk together to run errands. One place they visited frequently was the IGA grocery store about three blocks from their home. On a few occasions, Foddrill walked to the grocery store by herself.

During this time, Russell lived in a two-story house in Foddrill’s neighborhood. The house had an upstairs bedroom and an attic storage space. Throughout 1995, Russell was acquainted with Roger Long, John Redman, and Wanda Hubbell. Redman lived nearby, and there was a locked shed near his home. Redman and his wife, Plynia Fowler, had recently divorced, but the two remained in frequent contact. Russell often saw Foddrill as she was out walking, and he once attempted to speak to her. Russell began to develop an obsession with Foddrill and spoke to Redman, Long, and Hubbell about a plan to abduct her.

On August 18, 1995, Foddrill told her mother that she wanted to go to the grocery store. Irene was not feeling well so she let Foddrill go to the store by herself. Shortly after Foddrill entered the store, she left because the store did not have what she was hoping to purchase.

As Foddrill walked home, Fowler approached and began speaking to her. Meanwhile, Russell and Redman stepped out of a station wagon and approached Foddrill from behind. The group continued to move toward a white van parked nearby. Russell and Long then grabbed Foddrill’s arms and pushed her into the back of the van.

The group took Foddrill to Russell’s house and confined her in the attic storage space. For a little over a week, they subjected Foddrill to multiple sexual assaults and physical torment. Russell participated in abusing Foddrill and raped her multiple times. On at least two occasions, Hubbell came over to Russell’s house and also abused Foddrill. During her confinement, Russell fed Foddrill fast food and bathed her using a basin.

At some point, as Foddrill’s physical condition was deteriorating, the group agreed they would kill her and dispose of her body. Around August 30, 1995, Russell and the group severely beat Foddrill with a baseball bat. Then, Russell went outside of his house to get a knife. Russell gave this knife to Redman, who used it to stab Foddrill. The group rolled Foddrill’s body in a rug and put her in Redman’s shed.

Sometime later, the group removed Foddrill’s body from the shed and put it into a van. They drove to Lawrenceville, Illinois, and hid Foddrill’s body in a wooded area. The group then returned to Linton, Indiana.

Foddrill’s body was found on December 2, 1995. Long was arrested first on October 8, 1997. Redman was arrested on May 24, 1998. And after Hubbell and another individual linked Russell to the crime, Russell was arrested on October 20, 1998. While incarcerated, Russell made multiple admissions to his fellow inmates and others.

II. Procedural History

The State charged Russell with murder, Class A felony conspiracy to commit murder, Class B felony criminal confinement, and Class A felony criminal deviate conduct. The State also sought an LWOP sentence. To support the LWOP sentencing recommendation, the State charged three statutory aggravators: (1) Russell murdered Foddrill while committing criminal deviate conduct; (2) Russell tortured Foddrill; and (3) Foddrill was a victim of criminal confinement.

Following a trial, a jury found Russell guilty of all four charged offenses. The jury also found the State proved all three statutory LWOP aggravators and recommended a sentence of LWOP. The trial court accepted the jury’s recommendation and imposed a sentence of LWOP plus 120 years for the non-murder convictions.

Russell appealed his sentence to this Court, see Ind. Appellate Rule 4(A)(1)(a), raising five issues: (1) spousal privilege, (2) the sufficiency of the evidence for his criminal confinement conviction, (3) the sufficiency of the evidence for his deviate sexual conduct conviction, (4) a double jeopardy claim, and (5) the trial court’s reliance on an improper aggravator to support his LWOP conviction. We affirmed Russell’s convictions for murder and his LWOP sentence,¹ along with his conviction for conspiracy to commit murder. Russell v. State, 743 N.E.2d 269, 275 (Ind. 2001). However, due to insufficient evidence of certain enhancing elements, we changed Russell’s criminal confinement conviction from a Class B felony to a Class D felony and reduced the sentence to three years, served consecutively. Id. at 272–73. We also changed Russell’s criminal deviate conduct conviction from a Class A felony to a Class B felony and imposed a sentence of twenty years, served consecutively. Id. at 273. Russell was sentenced to fifty years for his conviction to commit murder, so after his first appeal, his sentence stood at LWOP plus seventy-three years. Id. at 271, 275.

In 2003, Russell filed a PCR petition. Between May 2018 and March 2019, Rus- sell amended this petition nine times. In September 2019, Russell and the State filed a Joint Motion to Dismiss Petition for Post-Conviction Relief With Prejudice and Modify Sentence, which reflected their agreement to dismiss the PCR petition in exchange for a resentencing hearing. They agreed the resentencing court would consider (1) whether Russell was statutorily ineligible for an LWOP sentence due to intellectual disability, (2) whether his convictions violated double jeopardy protections, and (3) applicable aggravating and mitigating circumstances. The resentencing court granted this motion on September 16, 2019. The resentencing hearing took place over three days: September 16 and 20, 2019, and February 28, 2020.

On August 16, 2021, the resentencing court entered its Order on Resentencing, which sentenced Russell to LWOP plus seventy-three years. Russell then filed a motion to correct error, which was deemed denied after the resentencing court declined to rule on it. Russell has now appealed his resentencing to this Court. App. R. 4(A)(1)(a).

Discussion and Decision

Russell identifies nine issues for our review, but the State contends we lack jurisdiction to consider any of them, either because appellate jurisdiction rests with the Court of Appeals rather than our Court, or, if not, then because the Superior Court lacked jurisdiction to enter its Order on Resentencing in the first place. Below, we explain why this Court has appellate jurisdiction and the Superior Court had jurisdiction to enter its order, and then we turn to Russell’s appeal issues, concluding none present reversible error.

I. Jurisdiction

A. Appellate Jurisdiction

[1] Russell appeals the Order on Resentencing directly to our Court, invoking our jurisdiction under Appellate Rule 4(A)(1)(a). That provision says, "[t]he Supreme Court shall have mandatory and exclusive jurisdiction over … Criminal Appeals in which a sentence of death or life imprisonment without parole is imposed." App. R. 4(A)(1)(a). But the State argues we lack jurisdiction because the appealed order, titled "Order on Resentencing," is really an order denying a request for sentence modification, and appeals from orders denying a sentence modification go directly to the Court of Appeals rather than our Court. Wilson v. State, 189 N.E.3d 231, 232 (Ind. Ct. App. 2022) (reviewing the denial of a sentence modification); App. R. 4 (providing the bases for Supreme Court jurisdiction).

To support its argument that the proceedings below were really for sentence modification, not resentencing, the State points out that Russell’s sentences were never vacated, and the parties’ joint motion triggering the proceedings was titled: "Joint Motion to Dismiss Petition for Post-Conviction Relief With Prejudice and Modify Sentence." App. Vol. IV at 112 (emphasis added). But other aspects of the proceedings that the State flags cut both ways.

[2] Russell requested a Department of Correction report pursuant to Indiana Code section 35-38-1-17, which is a...