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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. 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?

  2. 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?

  3. 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.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

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