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Supreme Court grants 3 transfers

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The Indiana Supreme Court granted three transfers Wednesday, including a case of first impression on sentence enhancements.

Joshua G. Nicoson v. State of Indiana, No. 32S04-1003-CR-150, is a case of first impression that divided the Indiana Court of Appeals about whether Joshua Nicoson's sentence enhancement based on his use of a deadly weapon violated double-jeopardy principals. The majority affirmed his 5-year sentence enhancement for the use of a firearm following Nicoson's convictions of criminal confinement with a deadly weapon and pointing a firearm.

The majority concluded it was apparent that Nicoson's convictions for confinement and the enhancement for that offense relied on separate facts. His criminal confinement conviction was elevated to a Class B felony because he was armed with a deadly weapon, and there's no requirement that the state has to prove a defendant actually used the weapon during the commission of the offense. The enhancement provision refers to actual use.

Judge Carr Darden dissented because Nicoson was charged and convicted of confining the victims while armed with a deadly weapon and of using a firearm while committing the confinement. If the deadly weapon is a firearm, how could a person thereby armed not also commit the offense of confinement using a firearm, questioned Judge Darden.

In Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven, No. 09S05-1003-CV-149, the Court of Appeals held the use of excessive force is not conduct immunized under Section 3(8) of the Indiana Tort Claims Act. It reversed summary judgment in favor of Cass County Sheriff Gene Isaacs in the Wilson brothers' suit alleging injuries as a result of excessive force. The appellate court noted there has been some confusion whether the ITCA law enforcement immunity provision applies to claims for injuries resulting from the use of excessive force during detention or arrest.

There are questions about whether Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), still remains good law. In Kemezy, the Supreme Court found law enforcement officers owe a private duty to refrain from excessive force when making arrests and the use of excessive force isn't immunized by Section 3(8). The judges followed the U.S. District Court for the Southern District of Indiana's reasoning on Kemezy to conclude the use of excessive force is not conduct immunized under section 3(8) of the ITCA.

In In the matter of the involuntary termination of the parent-child relationship of I.A.; J.H. v. Indiana Department of Child Services, No. 62S01-1003-JV-148, the Court of Appeals unanimously affirmed the involuntary termination of father J.H.'s parental rights in the not-for-publication decision. The father argued the Department of Child Services didn't prove by clear and convincing evidence that the conditions that resulted in I.A.'s removal wouldn't be remedied and that his relationship with his son threatened I.A.'s well-being. He argued it was I.A.'s mother's behavior and acts of negligence and not his that led to I.A.'s initial removal from his mother's home.

The Court of Appeals found sufficient evidence, such as J.H. hadn't bonded with his child and he lacked proper parenting skills after months of training.

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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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