ILNews

Judges find enhancement doesn't violate double jeopardy principles

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals tackled an issue of first impression in a case involving double jeopardy principles. A defendant’s sentence was enhanced under the Firearm Enhancement Statute following a conviction for reckless homicide.

In John G. Cooper v. State of Indiana, No. 32A05-1005-CR-309, John Cooper challenged his aggregate 13-year sentence for reckless homicide, which included a five-year enhancement under the Firearm Enhancement Statute. Cooper was convicted of Class C felony reckless homicide and the jury determined the state proved the firearm enhancement beyond a reasonable doubt. He claimed the evidence was insufficient to support the enhancement and that double jeopardy principles bar the enhancement because the conviction and enhancement were based on the single act of killing Michael Gelinas with a firearm.

Cooper suspected his wife was having an affair with Gelinas and purchased a shotgun and shells several days before confronting Gelinas at his home. An altercation ensued and Gelinas was shot and killed while he and Cooper wrestled. Cooper claimed he went to the home just to scare Gelinas.

The appellate judges affirmed there was sufficient evidence to support the enhancement, finding the state was able to prove Cooper knowingly or intentionally used a firearm to commit a reckless act.

In addressing the double jeopardy issue, the judges had to look to other jurisdictions for guidance because no Indiana court has squarely addressed this issue. Several of those jurisdictions have concluded that firearm sentencing enhancements similar to Indiana’s don’t raise double jeopardy concerns because the enhancement is merely a cumulative punishment rather than a separate offense, wrote Judge John Baker.

“We agree with those jurisdictions recognizing that sentencing enhancements are not offenses for double jeopardy purposes in circumstances such as the one before us. Indeed, the Firearm Enhancement Statute only prescribes an additional penalty for felonies that are committed with the use of a firearm,” he wrote.

Judge Baker also pointed to Joshua Nicoson v. State of Indiana, No. 32S04-1003-CR-150, in which a split Indiana Supreme Court recently held that state statute says that the use of a firearm can be the grounds for a sentence enhancement and doesn’t violate double jeopardy. Joshua Nicoson received a five-year sentence enhancement on one of his convictions of confinement with a deadly weapon.

“Again, Cooper was convicted of a single offense, for which the legislature has specifically provided a harsher penalty based on the use of a firearm. And even though the jury relied upon Cooper’s use of the shotgun for both the underlying offense and the enhancement, the legislature’s intent is clear that criminal offenses committed with firearms are to receive additional punishment,” he wrote.

The judges also affirmed Cooper’s aggregate 13-year sentence, finding it to be appropriate given the nature of the offense and his character.
 

ADVERTISEMENT

  • BS
    If he received punisment for a single crime and additional punishment (enhancement) for the same single crime, that certainly is double jeopardy. The courts can use any and all of the ambiguous language they choose to try to make their illegal, unconstitutional BS appear to be correct, when anyone but a lunatic knows better!
  • Law,
    This is baloney, however the courts have opened pandora's box, if they can use law from other jurisdictions so can defendants!
  • bullets?
    "Cooper . . . purchased a shotgun and bullets."
    Actually, he purchased a shotgun and shells. Bullets are not compatible with a shotgun. A shotgun fires shells, birdshot or buckshot, or slugs.

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  2. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  3. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  4. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

  5. And so the therapeutic state is weaonized. How soon until those with ideologies opposing the elite are disarmed in the name of mental health? If it can start anywhere it can start in the hoosiers' slavishly politically correct capital city.

ADVERTISEMENT