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COA not persuaded by defendant’s claims on appeal

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The Indiana Court of Appeals affirmed Bret Lee Sisson’s felony convictions of burglary, theft, receiving stolen property and unlawful possession of a firearm by a serious violent felon, finding no abuse of discretion or fundamental error during his trial.

At some point in late May or early June 2009, Sisson and Belinda Myers drove to the home of Judith and Richard Baber, where Sisson stole jewelry and guns from the home. He later exchanged the guns for marijuana and cash. Sisson and Myers were arrested June 17, 2009, and remained incarcerated. The Babers didn’t discover the burglary until after the arrests.

Sisson’s first trial resulted in a mistrial, so the state filed an amended SVF charge and habitual offender allegation without objection from Sisson a week later. The state alleged that the offenses occurred on or about June 2009 in the amended information as opposed to “on or about June 20, 2009” as was originally filed. Sisson was convicted as charged and also found guilty of the SVF charge and found to be a habitual offender.

Over Sisson’s objection, the same judge – Judge Richard Maughmer – who presided over the trial also sentenced him. Sisson sought his removal from sentencing because Maughmer had acted as the prosecuting attorney on Sisson’s rape conviction, which supported the habitual offender enhancement. He was sentenced to 53 years in the Department of Correction.

Sisson raised six issues on appeal, including that fundamental error occurred when the state refiled a previously dismissed SVF charge and habitual offender allegation after the mistrial, that the state’s failure to respond to his notice of alibi by the narrowing of the time period during which the offense was alleged to have occurred constituted a violation of the alibi statute, and that Maughmer should have granted his change of judge or recused himself for sentencing purposes only.

In Bret Lee Sisson v. State of Indiana, 09A02-1102-CR-199, the Court of Appeals noted that the SVF charge was dismissed prior to jury selection in Sisson’s first trial, so jeopardy never attached with respect to that charge and refiling was not barred. He also did not object to the dismissal of the SVF charge and habitual offender allegation, so refiling was not barred, Judge Ezra Friedlander wrote. The judges also rejected Sisson’s claim that refiling the charges was vindictive.

Sisson also failed to raise his claim regarding the alibi statute at trial.

“If Sisson believed that the lack of precision in the charging information impaired his ability to present a defense, he should have raised the issue prior to trial. His failure to do so constitutes waiver of any error in this regard,” Friedlander wrote. “Because Sisson was aware that the State intended to present evidence that Sisson
committed the crime prior to the date of his incarceration before trial, his claim that the State’s failure to narrow the time frame alleged in the charging information impaired his ability to formulate a defense is unpersuasive.”

The judges also found there was no reason for Maughmer to recuse himself prior to Sisson’s sentencing. Because Maughmer was not disqualified from presiding over Sisson’s jury trial due to an appearance of bias based on his involvement prosecuting Sisson previously for rape, there is no basis to conclude he was disqualified from pronouncing sentence for that reason, the court concluded.
 

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  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

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