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Justices rule on convictions, sentencing in police-impersonation case

Michael W. Hoskins
January 1, 2007
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Various offenses committed at different times and in different counties do not constitute a single episode of criminal conduct for sentencing purposes, the Indiana Supreme Court has reinforced this week.

That logic, however, doesn't extend to convictions, as the state's highest court has affirmed a lower appellate finding that multiple instances of police officer impersonation are considered "the same occurrence," and subsequent convictions in different counties violate Indiana's double jeopardy statute.

Justices granted transfer Wednesday in Derek Scott Geiger v. State of Indiana, issuing a two-page order that summarily affirmed the Court of Appeals' May 23 decision in Geiger v. State, 866 N.E. 2d 830 (Ind. Ct. App. 2007).

This case arises from an incident in July 2005 when Geiger and three others pulled a couple over and claimed to be narcotics officers. Geiger pleaded guilty in July 2006 to felony armed robbery in Floyd County and was sentenced to 10 years. In Harrison County, a jury found him guilty that August and he was later sentenced to 12 years to run consecutively to his Floyd County sentence. Charges were still pending at the time in Clark County for a similar incident.

In the lower appellate decision in May, the court vacated Geiger's conviction in Harrison County for impersonating a public servant because of his previous conviction for the same in Floyd County. The court held that "a defendant may not be convicted of more than one count of impersonating a public servant pursuant to Indiana Code section 35-44-2-3 based on the same occurrence, even if there are multiple victims."

The court noted, "It is an issue of first impression whether the appropriate number of convictions for impersonating a public servant turns on the number of victims to whom the defendant misrepresents or, instead, on the number of occasions on which the defendant engages in the unlawful conduct."

An appellate panel consisting of Chief Judge John Baker and Judges Mark Bailey and Melissa May determined that IC 35-44-2-3 is a conduct-oriented statute focusing on the act of impersonating a public servant and the intent to mislead another person. The statute doesn't require the victim to actually believe or be induced by the misrepresentation, the court reasoned.

In its order, the Supreme Court didn't delve into the conviction component of the case, affirming the Court of Appeals and only delving into the sentencing issues.

When analyzing the sentencing components on appeal, the Court of Appeals judges used a balancing test and determined "the independent nature of each of these offenses leads us to conclude that they are not a single episode of criminal conduct." The court rejected Geiger's argument that the consecutive sentences exceeded the length allowed by IC 35-50-1-2, in part because the offenses in both counties constituted one episode of that conduct.

Justices agreed, citing Reed v. State, 856 N.E.2d 1189, 1201 (Ind. 2006), and Harris v. State, 861 N.E. 2d 1182, 1188 (Ind. 2007), that both addressed the "episode of criminal conduct" issue.

The balancing test cited from Reed says, "Although the ability to recount each charge without referring to the other can provide additional guidance on the question of whether a defendant's conduct constitutes an episode of criminal conduct, it is not a critical ingredient in resolving the question. Rather, the statute speaks in less absolute terms: 'a connected series of offenses that are closely connected in time, place, and circumstance.'"

Justices wrote they agreed with the appellate court's conclusion that the various offenses, committed at different times and in different counties, did not constitute a single episode of criminal conduct.

The Supreme Court addressed another point Geiger made about how proper consecutive sentences were in that he didn't receive advisory sentences on the individual convictions. But the court dismissed that claim by citing a decision from Aug. 8 in Robertson v. State, where the holding was that a court imposing a consecutive sentence is not limited to the advisory sentence.
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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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