ILNews

Court examines 'judge' definition

Jennifer Nelson
January 1, 2007
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The Indiana Appeals Court today upheld the convictions and sentence of man who sent threatening letters to the Marion County Prosecutors Office, a judge, and commissioner after being ordered to have no contact.

To be clear in its decision, the appellate court delved into the definition of "judge" and determined the term does include a county commissioner who handles legal matters for the court.

In Allen Montgomery v. State of Indiana, No. 49A04-0703-CR-188, Montgomery appealed his two Class D felony convictions for intimidation and 11 Class A misdemeanor convictions for invasion of privacy. Montgomery was convicted of impersonating a public servant and was placed on probation. As a part of the probation, he was ordered to not have any contact with the Marion County Prosecutor's Office unless it was to report a crime.

A week after he was placed on probation, Montgomery went before Master Commissioner Nancy Broyles regarding an alleged probation violation on a separate incident. Marion Superior Judge Grant Hawkins appointed Commissioner Broyles and assigned her duties, including hearing jury trials.

Commissioner Broyles revoked Montgomery's probation and ordered him to serve four years in the Indiana Department of Correction. From there, Montgomery sent letters to the prosecutor's office, none of which reported crimes. He also sent a letter to Commissioner Broyles saying he found her home address online and he hated to see something happen to her. Montgomery sent a letter to Judge Hawkins, telling him protecting Commissioner Broyles would be "an exercise in futility."

Montgomery was convicted of intimidation and invasion of privacy; he was also deemed a habitual offender. His intimidation charges were amended to Class D felonies because of his threats to a judge. He was sentenced to an aggregate term of 7 1/2 years, which included an enhancement of 4 1/2 years for being a habitual offender.

On appeal, Montgomery argued his Class D conviction for threatening a judge was in error because Commissioner Broyles is not a judge as is defined by the code that defines intimidation.

But the court disagreed, with Judge Nancy Vaidik writing that Commissioner Broyles was appointed by a Superior Court judge to hear and decide legal matters in the court - how a judge is defined in Black's Law Dictionary. Therefore, sufficient evidence exists to support the Class D felony convictions, she wrote.

Montgomery believed his convictions for invasion of privacy also violated his state and federal constitutional rights, but Montgomery never raised on appeal the issue that the no-contact order with the prosecutor's office put a restraint on his "politically expressive speech." The appellate court did not address this issue because Montgomery didn't attempt to appeal that issue at the time it was imposed.

As far as Montgomery's sentence, the appellate court found the trial court was well within statutory rights to enhance his sentence for being a habitual offender, and given the nature of his offenses and his character, his sentence was appropriate.
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  1. 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.

  2. 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

  3. 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

  4. 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

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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