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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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