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Appeals court affirms revoked probation after test shows marijuana

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A man ordered to serve 90 days of a suspended one-year sentence for a conviction of misdemeanor marijuana possession wasn’t denied due process when his probation officer admitted evidence of a positive urinalysis, the Indiana Court of Appeals ruled.

In Andrew Wann v. State of Indiana, 32A01-1303-CR-123, Andrew Wann argued that the toxicology report was improperly admitted hearsay that didn’t meet the “substantial trustworthiness” test established in Reyes v. State, 868 N.E.2d 438, 440 n.1 (Ind. 2007). Wann also argued that the order to serve 90 days of his suspended sentence wasn’t authorized by statute.

Judge L. Mark Bailey wrote that the panel could not conclude from Reyes that, as Wann argued, an affidavit from a testing toxicologist was required to admit the urinalysis. And in any event, Wann had agreed to waive objection to the admissibility of the test results as a term of probation.

The court also rejected Wann’s argument that time he had served on the conviction, including good-time credit, plus time served on probation, was longer than the statutory maximum sentence of one year, and therefore it was outside the court’s discretion to order him to serve 90 days in jail.

“From the date of Wann’s November 10, 2009 sentence to his September 16, 2010 violation, 308 days had elapsed. The State alleged the violation within the probationary period, and subsequently proved the violation. Accordingly, the options of Indiana Code section 35-38-2-3(h) were available to the trial court, including an order for ‘execution of all or part of the sentence that was suspended at the time of initial sentencing.’ The trial court acted within its statutory discretion to order that Wann serve 90 days in jail," Bailey wrote for the panel that also included Judges Cale Bradford and Melissa May.
 

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  • Marijuana penalties too harsh
    58% of the American public believe that marijuana should be legalized. Marijuana is less harmful than alcohol or tobacco. No one has ever died smoking marijuana. In a few years we will all wonder how the legislature could ever have passed such legislation.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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