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Appeals court rehearing affirms serious violent felon conviction

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An Indiana Supreme Court ruling that a conviction of possession of a firearm by a serious violent felon cannot have a sentence enhanced under the habitual offender statute does not apply when the enhancement came for a separate conviction, the Indiana Court of Appeals held Monday.

In  Darryl Shepherd v. State of Indiana, 49A05-1111-CR-600, the court on rehearing affirmed its prior decision on Shepherd’s conviction of possession of a firearm by a serious violent felon.

The court held its petition for rehearing in abeyance until the Indiana Supreme Court ruled in Dye v. State, 972 N.E.2d 853, 855, 858 (Ind. 2012). The justices determined in Dye that the SVF conviction is impermissible only when the same underlying offense or chain of offenses is used to establish the SVF and the habitual offender status.

Shepherd also raises the issue for the first time on appeal, Judge Edward Najam wrote for the panel, thus waiving it.

“Shepherd’s waiver notwithstanding, our review of the record available on direct appeal demonstrates that his SVF status was based on a 1993 conviction for dealing in cocaine, as a Class B felony, while his habitual offender enhancement was based on a 1991 Class C felony conviction for battery and a 2008 Class D felony conviction for intimidation,” Najam wrote. “There is no reason for this court to believe that any one of those three underlying felonies is in any way related to another. Accordingly, we grant Shepherd’s petition for rehearing and affirm our prior decision.”


 

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  1. He did not have an "unlicensed handgun" in his pocket. Firearms are not licensed in Indiana. He apparently possessed a handgun without a license to carry, but it's not the handgun that is licensed (or registered).

  2. Once again, Indiana's legislature proves how friendly it is to monopolies. This latest bill by Hershman demonstrates the lengths Indiana's representatives are willing to go to put big business's (especially utilities') interests above those of everyday working people. Maassal argues that if the technology (solar) is so good, it will be able to compete on its own. Too bad he doesn't feel the same way about the industries he represents. Instead, he wants to cut the small credit consumers get for using solar in order to "add a 'level of certainty'" to his industry. I haven't heard of or seen such a blatant money-grab by an industry since the days when our federal, state, and local governments were run by the railroad. Senator Hershman's constituents should remember this bill the next time he runs for office, and they should penalize him accordingly.

  3. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  4. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  5. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

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