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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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  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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