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Judges find enhancement doesn't violate double jeopardy principles

January 11, 2011

The Indiana Court of Appeals tackled an issue of first impression in a case involving double jeopardy principles. A defendant’s sentence was enhanced under the Firearm Enhancement Statute following a conviction for reckless homicide.

In John G. Cooper v. State of Indiana, No. 32A05-1005-CR-309, John Cooper challenged his aggregate 13-year sentence for reckless homicide, which included a five-year enhancement under the Firearm Enhancement Statute. Cooper was convicted of Class C felony reckless homicide and the jury determined the state proved the firearm enhancement beyond a reasonable doubt. He claimed the evidence was insufficient to support the enhancement and that double jeopardy principles bar the enhancement because the conviction and enhancement were based on the single act of killing Michael Gelinas with a firearm.

Cooper suspected his wife was having an affair with Gelinas and purchased a shotgun and shells several days before confronting Gelinas at his home. An altercation ensued and Gelinas was shot and killed while he and Cooper wrestled. Cooper claimed he went to the home just to scare Gelinas.

The appellate judges affirmed there was sufficient evidence to support the enhancement, finding the state was able to prove Cooper knowingly or intentionally used a firearm to commit a reckless act.

In addressing the double jeopardy issue, the judges had to look to other jurisdictions for guidance because no Indiana court has squarely addressed this issue. Several of those jurisdictions have concluded that firearm sentencing enhancements similar to Indiana’s don’t raise double jeopardy concerns because the enhancement is merely a cumulative punishment rather than a separate offense, wrote Judge John Baker.

“We agree with those jurisdictions recognizing that sentencing enhancements are not offenses for double jeopardy purposes in circumstances such as the one before us. Indeed, the Firearm Enhancement Statute only prescribes an additional penalty for felonies that are committed with the use of a firearm,” he wrote.

Judge Baker also pointed to Joshua Nicoson v. State of Indiana, No. 32S04-1003-CR-150, in which a split Indiana Supreme Court recently held that state statute says that the use of a firearm can be the grounds for a sentence enhancement and doesn’t violate double jeopardy. Joshua Nicoson received a five-year sentence enhancement on one of his convictions of confinement with a deadly weapon.

“Again, Cooper was convicted of a single offense, for which the legislature has specifically provided a harsher penalty based on the use of a firearm. And even though the jury relied upon Cooper’s use of the shotgun for both the underlying offense and the enhancement, the legislature’s intent is clear that criminal offenses committed with firearms are to receive additional punishment,” he wrote.

The judges also affirmed Cooper’s aggregate 13-year sentence, finding it to be appropriate given the nature of the offense and his character.
 

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