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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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