ILNews

Enhancement not allowed for attempted crimes

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals overturned a sentence enhancement for a man convicted of attempted rape. The enhancement was for being a repeat sexual offender, but attempted rape is not a crime listed under the repeat sex offender statute that allows for the enhancement.

In William E. Wright v. State of Indiana, No. 48A02-0708-PC-678, the Court of Appeals agreed with Wright that his appellate counsel provided ineffective assistance in regards to challenging the sentence enhancement and that Wright's petition for post-conviction relief should have been granted.

Wright had been found guilty of attempted rape, criminal confinement, and battery resulting in injury. The state also filed additional information, alleging Wright was a repeat sexual offender. On the day he was convicted, Wright's counsel got him to admit he was a repeat sexual offender.

Wright appealed his convictions, and the Court of Appeals had remanded to the trial court to correct the judgment because attempted rape and criminal confinement convictions had violated double jeopardy principles. The trial court sentenced Wright to 20 years for attempted rape and enhanced the sentence by eight years for being a repeat sexual offender. He was also sentenced to one year for battery causing injury.

Wright filed a petition for post-conviction relief, alleging ineffective trial and appellate counsel assistance because they failed to challenge his repeat sex offender enhancement. The post-conviction court denied his petition.

The Court of Appeals' decision to reverse Wright's repeat sexual offender enhancement hinged upon the word "attempted." Wright was convicted of attempted rape, not rape. Wright argued his circumstance is similar to that in Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000), in which the Supreme Court ruled that if the legislature had intended for a list of crimes of violence to include other crimes, then the offense would have appeared in the statute. In Ellis' case, he appealed his sentence under Indiana Code 35-50-1-2(a), the consecutive and concurrent terms statute, which did not list any attempted crimes under "crimes of violence." Ellis had been convicted of attempted murder.

Just like the consecutive and concurrent terms statute, the repeat sex offender statute doesn't list any specific reference to attempted crimes.

Judge Patricia Riley wrote that the Court of Appeals must apply the rule of lenity and conclude the crime of attempted rape isn't included as an offense under the repeat sex offender statute. Thus, Wright's trial counsel erroneously got Wright to admit to being a repeat sex offender and his appellate counsel provided deficient performance for failing to allege Wright's trial counsel was ineffective for this reason or to argue the enhancement was a fundamental error.

The appeals court remands to trial court to adjust Wright's sentence because if the trial counsel had effectively argued this point, his sentence would not have been enhanced.
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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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