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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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