ILNews

Court: S.C. decision not retroactive

Jennifer Nelson
January 1, 2008
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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.
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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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