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Judges uphold drug possession conviction, reverse habitual offender enhancement

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A man who was arrested and charged with Class B felony possession of cocaine because he was within 1,000 feet of a family housing complex in Elkhart had his conviction upheld by the Indiana Court of Appeals Friday. But the judges reversed a habitual offender enhancement because the state didn’t prove that John F. Harris III had more than one dealing offense.

In John F. Harris, III v. State of Indiana, 20A03-1205-CR-210, Officer James Wrathell saw Harris walking down the middle of the street in the middle of the night and approached Harris. After Wrathell ordered Harris to put his hands on his head, Harris fled into a nearby apartment complex, where Wrathell caught him.

Harris had $680 in cash, several bags of marijuana and a bag of individually packaged rocks of cocaine on him. He was charged with possession of cocaine, enhanced to a Class B felony because he was within 1,000 feet of a family housing complex. The state also charged him with being a habitual offender.

At trial, the officer said he did not see any children during the incident, but workers at the apartment complex testified that most of the families that live in the complex are young mothers with children. The trial court found Harris guilty as charged and sentenced him to an aggregate term of 43 years.

The Court of Appeals, citing Griffin v. State, 925 N.E.2d 334, 337 (Ind. 2010), upheld the enhanced conviction. The judges felt “bound” by statements in Griffin to mean the evidence from the apartment complex employees could support the enhancement.

“We acknowledge that this interpretation of the defense seems inconsistent with its purpose, which is ‘to excuse a defendant from the required enhancement when his presence in the proscribed zone only minimally increases the risk to children,’” Judge Terry Crone wrote. “If the defense can be defeated merely because unseen children are present in a nearby residence, the enhancement becomes similar to a strict liability offense. The enhancement loses some of its value as a deterrent if it applies to offenders who are unaware that a child happens to be present in a nearby residence. Although the statutory defense as written is clearly available for persons charged with possession or dealing within 1000 feet of a family housing complex, as a practical matter, the defense will likely be difficult to establish.”

Harris previously pleaded guilty in 2003 to possession of cocaine or narcotic drug. The state also relied on a document titled “Bail Review Pretrial Release Report” that indicates Harris has a 1997 conviction of “Manufacture/Delivery of a Controlled Substance” from Illinois to support the habitual offender enhancement. But the record is silent as to which drug Harris manufactured and not all manufacturing offenses fall within the sections of Indiana Code 35-50-2-8(b)(3)(C), so the state did not prove Harris has more than one dealing conviction under that statute.
 


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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. 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

  3. 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

  4. 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

  5. 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.

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