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COA rules on man's theft conviction for third time

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Following an order from the Indiana Supreme Court that the lower appellate court more fully address the Proportionality Clause of the Indiana Constitution, the Indiana Court of Appeals has again upheld a man’s felony theft conviction.

The judges concluded that the classification of theft as a Class D felony doesn’t violate the Proportionality Clause under Article I, Section 16 of the state constitution. This is the third time the appellate court has addressed Marvin Ervin’s conviction, issuing its first not-for-publication decision in September 2010, and its second unpublished memorandum decision in April 2011 following remand from the Indiana Supreme Court.

On July 7, the justices again ordered the COA to take another look at Ervin’s argument involving the Proportionality Clause. Ervin was arrested and charged with Class D felony theft for taking a bike from an apartment building and selling it at a pawn shop. He offered a proposed jury instruction on Class A misdemeanor conversion, which was overruled by the trial court.

In Thursday’s opinion in Marvin Ervin v. State of Indiana (NFP), Nos. 49A05-1107-CR-347; 49A02-1002-CR-123, the judges noted that the decision set forth the facts and disposition of the remaining issues as were reported in its previous NFP decisions with minimal modifications. They affirmed the admission of pawn shop documents into evidence pursuant to the business record exception of the hearsay rules.

They also found the trial court didn’t abuse its discretion by refusing to instruct the jury on conversion in light of Morris v. State, 921 N.E.2d 40 (Ind. Ct. App. 2010), in which the appellate court held that a criminal conversion instruction as a lesser-included offense of felony theft was warranted by the evidence. In the instant case, the judges found no evidentiary dispute about Ervin’s intent to deprive someone of any part of the property’s value or use, as is required to convict someone of Class D felony theft. The intent element is not required to convict someone of Class A misdemeanor conversion.

The COA then addressed Ervin’s argument that the classification for Class D felony theft violates the Proportionality Clause because that offense is “one and the same” as criminal conversion, a Class A misdemeanor. The judges found Ervin’s reliance on Morris for the proposition that the two offenses are one and the same to be unpersuasive. They noted that the Indiana General Assembly has not merged the two offenses into one or amended the statutes to change the elements of the offenses, wrote Judge John Baker.

“In our view, we find nothing ‘incongruous or unfair’ about the legislature’s decision to punish the two crimes differently,” he wrote.

They noted that time and again, the appellate court has found that an evidentiary distinction exists between the two offenses in practical application. The penalty for Class D felony theft is not unconstitutionally disproportionate to that of Class A misdemeanor conversion, he wrote.

Ervin’s attorney, Joel Schumm, told Indiana Lawyer that he was surprised the decision was classified as an NFP because it is an issue of first impression. He said he’s asked that it be published. He believes the opinion conflicts with the language in Morris and other cases. He said the Model Penal Code and most states distinguish misdemeanors and felonies based on the value of property taken. He’s going to seek transfer to the Supreme Court.
 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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