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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues