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Judges reverse possession of meth, paraphernalia convictions

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In a consolidated appeal, the Indiana Court of Appeals reversed a Huntington County man’s convictions and sentences for possession of methamphetamine and paraphernalia, ruling the trial court abused its discretion in admitting evidence purportedly seized in violation of the Fourth Amendment.

Johnathon Aslinger was charged in Case No. 127 with the possession counts; he was charged with dealing in methamphetamine as a Class A felony in Case No. 152. The charges in Case No. 127 stem from a stop by police investigating vehicle break-ins. Aslinger and his friend Geoffrey Fugate were standing near a street where the cars were located and fit the description provided by dispatch. The officer saw a rolled cigarette behind Aslinger’s ear, which he said was “B2,” a form of synthetic drug Spice. A witness saw the two and said they were not the men who broke into the vehicles. By this time, the officer had searched Aslinger’s pockets because he saw a knife and found drug paraphernalia and methamphetamine. He also tested the cigarette and found it to be marijuana.

While on bond for Case No. 127, Aslinger was arrested for making meth within 1,000 feet of a public park.

He was convicted in separate trials, but sentenced together to 32 years for the dealing charge, enhanced by five years for the habitual substance offender adjudication. In the other case, he received a total of seven years, which included a five-and-a-half-year enhancement for being adjudicated as a habitual substance offender.

In Johnathon R. Aslinger v. State of Indiana, 35A02-1303-CR-296, the judges reversed his convictions in Case No. 127, finding the officer’s conduct went beyond what is allowed during a Terry stop. Judge Patricia Riley noted that a hand-rolled cigarette is not illegal per se and the officer only deduced there was a drug in it after removing it from Aslinger’s ear.

The judges also held that the trial court erred in imposing consecutive HSO enhancements in the two cases. On remand, they instructed the court to order the enhancements be served concurrently.

The appellate judges affirmed Aslinger’s dealing conviction, finding no error in the trial court’s decision to refuse to submit his tendered jury instruction asking the jury to find his conviction should not have been enhanced to a Class A felony. They also affirmed his sentence on the dealing conviction.

Judge Margret Robb concurred in a separate opinion, noting she believed the majority’s statement of law applicable to the plain view doctrine is too broad.
 

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  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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