Judge affirms retaining charges but finds criminal prosecution unjust

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An Indiana Court of Appeals judge expressed concern that a woman’s criminal case may be affected by her admittance of violating several city ordinances after her dogs attacked two people.

Carolyn Boss brought an interlocutory appeal challenging the denial of her motion to dismiss the charging information of criminal charges related to her dogs’ attacks. She argued that her criminal charges, filed a month after she was cited for violating Indianapolis ordinances, are a violation of double jeopardy principles. Boss admitted to 12 of the 15 violations which resulted in more than $1,200 in fines and court costs.

The trial court denied her motion to dismiss, concluding that the enforcement of the ordinances didn’t constitute punishment and the criminal prosecution was therefore not a second prosecution for the same offense.  

In Carolyn Boss v. State of Indiana, No. 49A02-1002-CR-225, Judges Ezra Friedlander and Paul Mathias affirmed, holding the ordinances – some of which prohibit the same conduct as the criminal statutes – were intended to be a civil remedy, not a criminal penalty.

They also analyzed the ordinances in question using the seven factors identified in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), to conclude there is little evidence that the ordinance enforcement actions serve a punitive purpose.

Judge Melissa May concurred in result, unable to find fault with the majority’s analysis of the Mendoza-Martinez factors, but still felt the criminal prosecution of Boss was unjust. She believed the city fined Boss under ordinances that appear invalid under Indiana Code Section 36-1-3-8 because that section prohibits ordinances that prescribe a “penalty for conduct constituting a crime or infraction under statute.”

Judge May also worried that the appellate court’s decision effectively deprives Boss of her presumption of innocence or any meaningful right to counsel in the criminal prosecution. Boss didn’t have an attorney during the ordinance-violation proceeding, and the trial court found her to be indigent. Defendants have the right to counsel in all criminal prosecutions, “But those rights have little meaning where, as in the case before us, the State is in a position to pursue a criminal prosecution based on admissions a defendant made in an ordinance-violation proceeding where no such right-to-counsel protection was available to her,” she wrote.

“It appears Boss was subjected to a money penalty under an ordinance that is invalid, and will now be deprived of her presumption of innocence and of meaningful assistance of counsel as the State pursues her criminal prosecution. That is wrong, even if the State can avoid double jeopardy violations by characterizing the ordinance violation penalties as having no ‘punitive effect.’ It violates the spirit of numerous constitutional rights intended to protect the innocent in criminal proceedings.”


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.