Enhancement not allowed for attempted crimes

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals overturned a sentence enhancement for a man convicted of attempted rape. The enhancement was for being a repeat sexual offender, but attempted rape is not a crime listed under the repeat sex offender statute that allows for the enhancement.

In William E. Wright v. State of Indiana, No. 48A02-0708-PC-678, the Court of Appeals agreed with Wright that his appellate counsel provided ineffective assistance in regards to challenging the sentence enhancement and that Wright's petition for post-conviction relief should have been granted.

Wright had been found guilty of attempted rape, criminal confinement, and battery resulting in injury. The state also filed additional information, alleging Wright was a repeat sexual offender. On the day he was convicted, Wright's counsel got him to admit he was a repeat sexual offender.

Wright appealed his convictions, and the Court of Appeals had remanded to the trial court to correct the judgment because attempted rape and criminal confinement convictions had violated double jeopardy principles. The trial court sentenced Wright to 20 years for attempted rape and enhanced the sentence by eight years for being a repeat sexual offender. He was also sentenced to one year for battery causing injury.

Wright filed a petition for post-conviction relief, alleging ineffective trial and appellate counsel assistance because they failed to challenge his repeat sex offender enhancement. The post-conviction court denied his petition.

The Court of Appeals' decision to reverse Wright's repeat sexual offender enhancement hinged upon the word "attempted." Wright was convicted of attempted rape, not rape. Wright argued his circumstance is similar to that in Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000), in which the Supreme Court ruled that if the legislature had intended for a list of crimes of violence to include other crimes, then the offense would have appeared in the statute. In Ellis' case, he appealed his sentence under Indiana Code 35-50-1-2(a), the consecutive and concurrent terms statute, which did not list any attempted crimes under "crimes of violence." Ellis had been convicted of attempted murder.

Just like the consecutive and concurrent terms statute, the repeat sex offender statute doesn't list any specific reference to attempted crimes.

Judge Patricia Riley wrote that the Court of Appeals must apply the rule of lenity and conclude the crime of attempted rape isn't included as an offense under the repeat sex offender statute. Thus, Wright's trial counsel erroneously got Wright to admit to being a repeat sex offender and his appellate counsel provided deficient performance for failing to allege Wright's trial counsel was ineffective for this reason or to argue the enhancement was a fundamental error.

The appeals court remands to trial court to adjust Wright's sentence because if the trial counsel had effectively argued this point, his sentence would not have been enhanced.

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  1. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.