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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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