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 grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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