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. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

  2. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

  3. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

  4. Being dedicated to a genre keeps it alive until the masses catch up to the "trend." Kent and Bill are keepin' it LIVE!! Thank you gentlemen..you know your JAZZ.

  5. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

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