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addressed Marvin Ervin’s conviction, issuing its first not-for-publication decision in September 2010, and its second unpublished memorandum decision in April 2011 following remand from the Indiana Supreme Court.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.