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Judges find enhancement doesn't violate double jeopardy principles

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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.
 

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  • 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.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

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  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

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