ILNews

Court: S.C. decision not retroactive

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
In a case of first impression, the Indiana Court of Appeals ruled today that retroactivity doesn't apply to a year-old Indiana Supreme Court decision that held charging information must be amended within 30 days before the omnibus date.

As a result of the ruling, a Hendricks County man convicted of child molesting doesn't get relief.

At issue in Terry Leatherwood's appeal in Terry Leatherwood v. State of Indiana, No. 32A05-0710-PC-573, is whether the post-conviction court erred in refusing to apply the holding of Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007) to his petition for post-conviction relief.

In late 2001, Leatherwood was charged with several counts of child molesting and the omnibus date was set for Jan. 18, 2002, with trial scheduled for June 10 of that year. The state in May 2002 attempted to amend five additional counts of child molesting, which were dismissed pursuant to a motion by Leatherwood. The state then amended three of the counts, petitioned the court to allow counts four through seven, and the trial court allowed counts four and seven to be filed and amended.

Leatherwood was convicted of all counts of child molesting and sentenced to an aggregate term of 120 years in prison.

Leatherwood appealed in 2003, and the Court of Appeals ruled that allowing the state to file the amended charges after the omnibus date did not prejudice Leatherwood.

But in January 2007, the Indiana Supreme Court issued its Fajardo decision and held that amendments of substance to charging information couldn't be made after 30 days prior to the omnibus date, regardless of a lack of prejudice. Leatherwood, who had filed a post-conviction petition in 2004, amended it to include his claim that the trial court erred in allowing the untimely amendment to his charging information. The post-conviction court denied his petition.

Judge Cale Bradford wrote today that Hendricks Circuit Judge Jeff Boles didn't err when determining Fajardo wasn't retroactive. Because the court's earlier ruling was based on established precedent at the time, it was not erroneous. However, if the court rules Fajardo should be applied retroactively on collateral review, Leatherwood would be entitled to relief, Judge Bradford wrote, relying on the state justices' stance following retroactivity rulings in Teague v. Lane, 489 U.S. 288 (1989) and Penry v. Lynaugh, 492 U.S. 302 (1989).

This court cannot apply the analysis found in Teague because the "new" rule - which was determined in Fajardo - is not constitutionally based, so it cannot be considered for retroactive application, Judge Bradford wrote. The rule announced in Fajardo was based solely on language in Indiana Code, not the state or federal constitution, he wrote.

Even looking outside of the Teague framework to determine whether Fajardo can be retroactively applied requires appellate judges to look to Teague for guidance, the judge determined.

"... The Teague framework stands for the proposition that the more compelling the constitutional interest, the more likely that a rule embodying it will be applied retroactively," he wrote. "With this in mind, and in light of the fact that even the most constitutional rules are not given retroactive effect, it follows that those not rooted in any constitutional provision, like the rule announced in Fajardo, should not be given retroactive effect either."

The Court of Appeals affirmed the post-conviction court's refusal to retroactively apply Fajardo to Leatherwood's convictions, resulting in the ultimate denial of any post-conviction relief.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

ADVERTISEMENT