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Justices reaffirm ruling on sentence enhancements under habitual offender statute

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The Indiana Supreme Court Thursday granted the state’s request for a rehearing in a case in which the justices determined that Anthony Dye’s sentence for unlawful possession of a firearm by a serious violent felon, which was enhanced under the general habitual offender statute, was an impermissible double enhancement. The justices used the rehearing to reiterate that a person convicted of unlawful possession of a firearm by a SVF may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a SVF.

In Anthony H. Dye v. State of Indiana, 20S04-1201-CR-5,  the state petitioned for rehearing contending the court’s decision in Dye’s case was a departure from Mills v. State, 868 N.E.2d 446, 452 (Ind. 2007), in that the justices held that serious violent felons who possess firearms cannot be punished as habitual offenders.

In Mills, the court held “a person convicted of unlawful possession of a firearm by a serious violent felon may not have his or her sentence enhanced under the general habitual offender statute by proof of the same felony used to establish that the person was a ‘serious violent felon.’” The justices reaffirmed the ruling, but pointed out that Dye is not entitled to relief on this ground.

Instead, the felony used to establish that Dye was a habitual offender was part of the same res gestae, and the enhancements must be based on two unrelated prior felonies. Dye's stemmed from a confrontation between Dye and an Elkhart Police officer in 1997, where he pleaded guilty to possession of a handgun, possession of a handgun within 1,000 feet of a school, and attempted battery while armed with a deadly weapon. The state used the possession within 1,000 feet of a school and a 1993 conviction for forgery to seek to have his sentenced enhanced under the general habitual offender statute. He was charged in 2007 - the conviction at issue in this case - with unlawful possession of a firearm by a SVF based on his conviction of attempted battery with a deadly weapon stemming from the 1997 incident.

“The State is not be permitted to support Dye's habitual offender finding with a conviction that arose out of the same res gestae that was the source of the conviction used to prove Dye was a serious violent felon,” Rucker wrote.

Justice Mark Massa concurred with his colleagues that the original opinion didn’t extend Mills to situations where different prior unrelated convictions are used to establish a habitual offender finding and the elements of the SVF statue, but continued to “dissent from the ultimate result on rehearing for reasons previously explained” in the original opinion.
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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