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. Freedom From Religion Foundation: If you really want to be free from religion, don't go to the Christmas Play or the Christmas Pageant or the Christmas Parade. Anything with "Christ" or Saint...fill in the blank...would be off limits to you. Then leave the rest of us ALONE!

  2. So the prosecutor made an error and the defendants get a full remedy. Just one short paragraph to undo the harm of the erroneous prosecution. Wow. Just wow.

  3. Wake up!!!! Lawyers are useless!! it makes no difference in any way to speak about what is important!! Just dont tell your plans to the "SELFRIGHTEOUS ARROGANT JERKS!! WHO THINK THEY ARE BETTER THAN ANOTHER MAN/WOMAN!!!!!!

  4. Looks like you dont understand Democracy, Civilized Society does not cut a thiefs hands off, becouse now he cant steal or write or feed himself or learn !!! You deserve to be over punished, Many men are mistreated hurt in many ways before a breaking point happens! grow up !!!

  5. It was all that kept us from tyranny. So sad that so few among the elite cared enough to guard the sacred trust. Nobody has a more sacred obligation to obey the law than those who make the law. Sophocles No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right; not asked as a favor. Theodore Roosevelt That was the ideal ... here is the Hoosier reality: The King can do no wrong. Legal maxim From the Latin 'Rex non potest peccare'. When the President does it, that means that it is not illegal. Richard Nixon