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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. I will be filing a lawsuit in Tippecanoe County for so many violations in a case we became involved in, including failure to contact through mail, Violation of 4th Amendment rights, Violation of Civil Rights, and so on. Even the Indiana Ombudsmen Bureau found violations and I have now received the report and they are demanding further training in Tippecanoe County. I am going to make sure they follow through!!!

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  3. I thought the purpose of the criminal justice center was to consolidate all the criminal services and get them out of downtown to clean up the place. Why in the HELL are the civil courts moving? What a burden to all the downtown law firms. Now we all get to work downtown, but then have to get in a car and COMMUTE to court? Who approved this idiocy?

  4. I drive through the neighborhood whenever I go to the City-County Building or the Federal Courthouse. The surrounding streets are all two way with only two lanes of traffic, and traffic is very slow during rush hour. I hope that enough money has been allocated to allow for improvement of the surrounding streets.

  5. I have had an ongoing custody case for 6 yrs. I should have been the sole legal custodial parent but was a victim of a vindictive ex and the system biasedly supported him. He is an alcoholic and doesn't even have a license for two yrs now after his 2nd DUI. Fast frwd 6 yrs later my kids are suffering poor nutritional health, psychological issues, failing in school, have NO MD and the GAL could care less, DCS doesn't care. The child isn't getting his ADHD med he needs and will not succeed in life living this way. NO one will HELP our family.I tried for over 6 yrs. The judge called me an idiot for not knowing how to enter evidence and the last hearing was 8 mths ago. That in itself is unjust! The kids want to be with their Mother! They are being alienated from her and fed lies by their Father! I was hit in a car accident 3 yrs ago and am declared handicapped myself. Poor poor way to treat the indigent in Indiana!

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