ILNews

Court: S.C. decision not retroactive

Jennifer Nelson
January 1, 2008
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
In a case of first impression, the Indiana Court of Appeals ruled today that retroactivity doesn't apply to a year-old Indiana Supreme Court decision that held charging information must be amended within 30 days before the omnibus date.

As a result of the ruling, a Hendricks County man convicted of child molesting doesn't get relief.

At issue in Terry Leatherwood's appeal in Terry Leatherwood v. State of Indiana, No. 32A05-0710-PC-573, is whether the post-conviction court erred in refusing to apply the holding of Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007) to his petition for post-conviction relief.

In late 2001, Leatherwood was charged with several counts of child molesting and the omnibus date was set for Jan. 18, 2002, with trial scheduled for June 10 of that year. The state in May 2002 attempted to amend five additional counts of child molesting, which were dismissed pursuant to a motion by Leatherwood. The state then amended three of the counts, petitioned the court to allow counts four through seven, and the trial court allowed counts four and seven to be filed and amended.

Leatherwood was convicted of all counts of child molesting and sentenced to an aggregate term of 120 years in prison.

Leatherwood appealed in 2003, and the Court of Appeals ruled that allowing the state to file the amended charges after the omnibus date did not prejudice Leatherwood.

But in January 2007, the Indiana Supreme Court issued its Fajardo decision and held that amendments of substance to charging information couldn't be made after 30 days prior to the omnibus date, regardless of a lack of prejudice. Leatherwood, who had filed a post-conviction petition in 2004, amended it to include his claim that the trial court erred in allowing the untimely amendment to his charging information. The post-conviction court denied his petition.

Judge Cale Bradford wrote today that Hendricks Circuit Judge Jeff Boles didn't err when determining Fajardo wasn't retroactive. Because the court's earlier ruling was based on established precedent at the time, it was not erroneous. However, if the court rules Fajardo should be applied retroactively on collateral review, Leatherwood would be entitled to relief, Judge Bradford wrote, relying on the state justices' stance following retroactivity rulings in Teague v. Lane, 489 U.S. 288 (1989) and Penry v. Lynaugh, 492 U.S. 302 (1989).

This court cannot apply the analysis found in Teague because the "new" rule - which was determined in Fajardo - is not constitutionally based, so it cannot be considered for retroactive application, Judge Bradford wrote. The rule announced in Fajardo was based solely on language in Indiana Code, not the state or federal constitution, he wrote.

Even looking outside of the Teague framework to determine whether Fajardo can be retroactively applied requires appellate judges to look to Teague for guidance, the judge determined.

"... The Teague framework stands for the proposition that the more compelling the constitutional interest, the more likely that a rule embodying it will be applied retroactively," he wrote. "With this in mind, and in light of the fact that even the most constitutional rules are not given retroactive effect, it follows that those not rooted in any constitutional provision, like the rule announced in Fajardo, should not be given retroactive effect either."

The Court of Appeals affirmed the post-conviction court's refusal to retroactively apply Fajardo to Leatherwood's convictions, resulting in the ultimate denial of any post-conviction relief.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
ADVERTISEMENT