ILNews

Court: S.C. decision not retroactive

Jennifer Nelson
January 1, 2008
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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.
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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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