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Justices divided on firearm 'use' sentencing

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A divided Indiana Supreme Court has held that state statute dictates that the use of a firearm can be the grounds for a sentence enhancement that doesn’t constitute a double jeopardy violation.

In its eight-page decision today in Joshua G. Nicoson v. State of Indiana , No. 32S04-1003-CR-150, three of the justices held that a five-year sentence enhancement on a Hendricks County case is consistent with state statutes and the prohibition against double jeopardy.

The case involves a 27-year old man who confronted a friend’s boyfriend with a gun to help her end a relationship with him. The 17-year old boyfriend and three others arrived in a car and saw Nicoson pointing a gun in the air.

Nicoson went to a gas station and pointed a gun in the air, firing a warning shot, then held the 17-year old boyfriend and a passenger. He also pointed the gun at the boyfriend and a passenger, ordered the people at gunpoint to lie on the ground, and then fired at the car when they escaped. After a bench trial, the court found Nicoson guilty on two Class B felony counts of confinement with a deadly weapon and other felony counts of pointing a firearm. The judge added five years to one of the confinement convictions for the use of the firearm during the offense – specifically pointing out how Nicoson had held the gun to the boyfriend’s head while he was facedown on the ground.

The Court of Appeals tackled this issue of first impression in January, but came out divided in its holding that someone armed with a deadly weapon is the basis for a confinement enhancement associated with that specific Class B felony, and that the additional five-year enhancement was a separate issue going to the punishment for a person’s actual use of the deadly weapon.

A majority of the justices agreed, analyzing Indiana Code Section 35-50-2-11 that allows a judge to enhance a person's sentence to an additional fixed term of five years if the state can prove beyond a reasonable doubt the person "used" a firearm in the commission of the offense.

Chief Justice Randall T. Shepard wrote the majority opinion, citing caselaw that finds the double jeopardy constitutional principle is aimed at multiple convictions while multiple sentencing enhancements turn on statutory interpretation. Since this five-year enhancement is not part of the criminal confinement provisions that Nicoson was charged with but falls under the penalty codes within state statute, it doesn’t interfere, the chief justice wrote.

“In effect, Nicoson is contending that the State proved too much too soon,” he wrote. “He had to mean that the legislative design seeks to impose greater penalty on a perpetuator who brings a gun to the scene of the crime and eventually pulls it out and aims it, but a lesser penalty for a perpetuator who discharges the weapon as a warning, aims it at other human beings, and brandishes it throughout the whole encounter. It cannot be so. The legislative direction in the language of the statutes is explicit. The enumeration of criminal confinement in the ‘firearm use statute’ is authorization by the General Assembly for this type of enhancement.”

Justices Steven David and Brent Dickson joined the chief justice in the majority, but Justices Robert Rucker and Frank Sullivan dissented. Though they agreed with the majority’s general observation about conviction versus penalty analysis, they determined that the facts here showed no distinction between Nicoson’s being “armed” and his “use” of the firearm. That warrants a reversal and remand to the trial court, they wrote.

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  • Multiple Enhancements
    I believe that the issue here is that Nicoson was convicted of Criminal Confinement with a Deadly Weapon and then had a weapons ehancement added on. Criminal Confinement is a D felony which is enhanced to a B felony when a firearm is used. To add a further enhancement to an already enhanced sentence is blatantly unconstitutional under US Law. In Indiana, however, the General Assembly allows this double enhancement. Hopefully the Criminal Code Evaluation Commission will retract this error. This is clearly double sentencing and therefore double jeopardy.
  • Incorrect
    The facts about Joshua Nicoson's case are not recorded accurately here. The five men came to Joshua's home to confront him over an earlier phone call -- Josh did not fire a gun at a gas station, as reported here. He was on his own property. Further, none of the victims ever testified that Josh pointed a gun at his head, only the trial judge made that declaration. Unfortunately, this is not a case of shoddy reporting by this website -- all of these inaccuracies were presented in the Appeals Court and the Supreme Court cases. It's too bad that the true facts of the case never had the chance to come out.

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. 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.

  3. 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

  4. 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

  5. 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

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