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Justices divided on firearm 'use' sentencing

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A divided Indiana Supreme Court has held that state statute dictates that the use of a firearm can be the grounds for a sentence enhancement that doesn’t constitute a double jeopardy violation.

In its eight-page decision today in Joshua G. Nicoson v. State of Indiana , No. 32S04-1003-CR-150, three of the justices held that a five-year sentence enhancement on a Hendricks County case is consistent with state statutes and the prohibition against double jeopardy.

The case involves a 27-year old man who confronted a friend’s boyfriend with a gun to help her end a relationship with him. The 17-year old boyfriend and three others arrived in a car and saw Nicoson pointing a gun in the air.

Nicoson went to a gas station and pointed a gun in the air, firing a warning shot, then held the 17-year old boyfriend and a passenger. He also pointed the gun at the boyfriend and a passenger, ordered the people at gunpoint to lie on the ground, and then fired at the car when they escaped. After a bench trial, the court found Nicoson guilty on two Class B felony counts of confinement with a deadly weapon and other felony counts of pointing a firearm. The judge added five years to one of the confinement convictions for the use of the firearm during the offense – specifically pointing out how Nicoson had held the gun to the boyfriend’s head while he was facedown on the ground.

The Court of Appeals tackled this issue of first impression in January, but came out divided in its holding that someone armed with a deadly weapon is the basis for a confinement enhancement associated with that specific Class B felony, and that the additional five-year enhancement was a separate issue going to the punishment for a person’s actual use of the deadly weapon.

A majority of the justices agreed, analyzing Indiana Code Section 35-50-2-11 that allows a judge to enhance a person's sentence to an additional fixed term of five years if the state can prove beyond a reasonable doubt the person "used" a firearm in the commission of the offense.

Chief Justice Randall T. Shepard wrote the majority opinion, citing caselaw that finds the double jeopardy constitutional principle is aimed at multiple convictions while multiple sentencing enhancements turn on statutory interpretation. Since this five-year enhancement is not part of the criminal confinement provisions that Nicoson was charged with but falls under the penalty codes within state statute, it doesn’t interfere, the chief justice wrote.

“In effect, Nicoson is contending that the State proved too much too soon,” he wrote. “He had to mean that the legislative design seeks to impose greater penalty on a perpetuator who brings a gun to the scene of the crime and eventually pulls it out and aims it, but a lesser penalty for a perpetuator who discharges the weapon as a warning, aims it at other human beings, and brandishes it throughout the whole encounter. It cannot be so. The legislative direction in the language of the statutes is explicit. The enumeration of criminal confinement in the ‘firearm use statute’ is authorization by the General Assembly for this type of enhancement.”

Justices Steven David and Brent Dickson joined the chief justice in the majority, but Justices Robert Rucker and Frank Sullivan dissented. Though they agreed with the majority’s general observation about conviction versus penalty analysis, they determined that the facts here showed no distinction between Nicoson’s being “armed” and his “use” of the firearm. That warrants a reversal and remand to the trial court, they wrote.

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  • Multiple Enhancements
    I believe that the issue here is that Nicoson was convicted of Criminal Confinement with a Deadly Weapon and then had a weapons ehancement added on. Criminal Confinement is a D felony which is enhanced to a B felony when a firearm is used. To add a further enhancement to an already enhanced sentence is blatantly unconstitutional under US Law. In Indiana, however, the General Assembly allows this double enhancement. Hopefully the Criminal Code Evaluation Commission will retract this error. This is clearly double sentencing and therefore double jeopardy.
  • Incorrect
    The facts about Joshua Nicoson's case are not recorded accurately here. The five men came to Joshua's home to confront him over an earlier phone call -- Josh did not fire a gun at a gas station, as reported here. He was on his own property. Further, none of the victims ever testified that Josh pointed a gun at his head, only the trial judge made that declaration. Unfortunately, this is not a case of shoddy reporting by this website -- all of these inaccuracies were presented in the Appeals Court and the Supreme Court cases. It's too bad that the true facts of the case never had the chance to come out.

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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