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Judges reverse possession of meth, paraphernalia convictions

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In a consolidated appeal, the Indiana Court of Appeals reversed a Huntington County man’s convictions and sentences for possession of methamphetamine and paraphernalia, ruling the trial court abused its discretion in admitting evidence purportedly seized in violation of the Fourth Amendment.

Johnathon Aslinger was charged in Case No. 127 with the possession counts; he was charged with dealing in methamphetamine as a Class A felony in Case No. 152. The charges in Case No. 127 stem from a stop by police investigating vehicle break-ins. Aslinger and his friend Geoffrey Fugate were standing near a street where the cars were located and fit the description provided by dispatch. The officer saw a rolled cigarette behind Aslinger’s ear, which he said was “B2,” a form of synthetic drug Spice. A witness saw the two and said they were not the men who broke into the vehicles. By this time, the officer had searched Aslinger’s pockets because he saw a knife and found drug paraphernalia and methamphetamine. He also tested the cigarette and found it to be marijuana.

While on bond for Case No. 127, Aslinger was arrested for making meth within 1,000 feet of a public park.

He was convicted in separate trials, but sentenced together to 32 years for the dealing charge, enhanced by five years for the habitual substance offender adjudication. In the other case, he received a total of seven years, which included a five-and-a-half-year enhancement for being adjudicated as a habitual substance offender.

In Johnathon R. Aslinger v. State of Indiana, 35A02-1303-CR-296, the judges reversed his convictions in Case No. 127, finding the officer’s conduct went beyond what is allowed during a Terry stop. Judge Patricia Riley noted that a hand-rolled cigarette is not illegal per se and the officer only deduced there was a drug in it after removing it from Aslinger’s ear.

The judges also held that the trial court erred in imposing consecutive HSO enhancements in the two cases. On remand, they instructed the court to order the enhancements be served concurrently.

The appellate judges affirmed Aslinger’s dealing conviction, finding no error in the trial court’s decision to refuse to submit his tendered jury instruction asking the jury to find his conviction should not have been enhanced to a Class A felony. They also affirmed his sentence on the dealing conviction.

Judge Margret Robb concurred in a separate opinion, noting she believed the majority’s statement of law applicable to the plain view doctrine is too broad.
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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