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Majority: No double jeopardy in enhancement

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In a matter of first impression, the Indiana Court of Appeals was divided about whether a man's sentence enhancement based on his use of a deadly weapon violated the application of double-jeopardy principals.

The majority ruled no and affirmed the trial court's 5-year sentence enhancement for the use of a firearm following Joshua Nicoson's convictions of criminal confinement with a deadly weapon as a Class B felony. He was also charged with four counts of pointing a firearm as a Class D felony.

In Joshua G. Nicoson v. State of Indiana, No. 32A04-0905-CR-241, Nicoson argued the enhanced penalty constituted an impermissible double enhancement in violation of double-jeopardy principles.

Nicoson went to a gas station with a gun to confront his friend's boyfriend and to help her end her relationship with the man. The boyfriend and three others arrived in a car and saw Nicoson pointing a gun in the air. He also pointed the gun at the boyfriend and a passenger, fired a warning shot in the air, ordered the people at gunpoint to lie on the ground, and then fired at the car when the people escaped.

Indiana Code Section 35-50-2-11 allows a judge to enhance a person's sentence to an additional fixed term of 5 years if the state can prove beyond a reasonable doubt the person "used" a firearm in the commission of the offense.

The majority concluded it was apparent that Nicoson's convictions for confinement and the enhancement for that offense relied on separate facts. His criminal confinement conviction was elevated to a Class B felony because he was armed with a deadly weapon, and there's no requirement that the state has to prove a defendant actually used the weapon during the commission of the offense, wrote Chief Judge John Baker. The enhancement provision refers to actual use.

"In sum, the enhancement of the sentence is connected to, and punishes a defendant for, the additional escalation of danger, which is based on the actual use of the deadly weapon," he wrote.

The chief judge noted that two other jurisdictions addressing this issue also found the enhancements to be proper.

Judge Carr Darden dissented because Nicoson was charged and convicted of confining the victims while armed with a deadly weapon and of using a firearm while committing the confinement. If the deadly weapon is a firearm, how could a person thereby armed not also commit the offense of confinement using a firearm, questioned Judge Darden. He found the enhancement violated double jeopardy provisions under the Richardson "actual evidence test."

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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