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Resisting law enforcement conviction reduced due to double jeopardy violation

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A post-conviction court “clearly erred” when it found a man’s trial attorney did not provide ineffective assistance of counsel, the Indiana Court of Appeals ruled Tuesday. The judges ordered the court to reduce Timmy Zieman’s Class C felony resisting law enforcement conviction to a Class D felony because of a violation of double jeopardy principles.

Zieman fled from police after an argument with his wife and crashed his car into Crown Point Sergeant John Allendorf Jr.’s car, which caused the officer serious bodily injury. Zieman was charged with several counts as a result of the incident, including attempted murder and Class C felony resisting law enforcement resulting in serious bodily injury. He was found guilty but mentally ill.

In his petition for post-conviction relief, Zieman argued his trial and appellate counsel were ineffective because neither challenged his attempted murder conviction and the serious bodily injury element that elevated his resisting law enforcement conviction on double jeopardy grounds. The PCR court denied his petition.

In Timmy T. Zieman v. State of Indiana, 45A03-1301-PC-1, the judges found that the statutory elements test or actual evidence test under Richardson v. State, 717 N.E.2d 32, 49-50 (Ind. 1999), weren’t violated in Zieman’s case. The COA also used common law not governed by the constitutional test set forth in Richardson to evaluate Zieman’s claim. These rules were first enumerated by Justice Frank Sullivan in his concurring opinion in Richardson, one of which prohibits conviction and punishment for an enhancement of a crime where the enhancement is imposed for the same behavior or harm as another crime for which the defendant has been convicted and punished.

“Based on the prosecutor’s arguments to the jury and the lack of specificity in the charging information and jury instructions, we conclude that there is a reasonable possibility that the jury used the evidence of Zieman crashing his vehicle into Sergeant Allendorf’s vehicle and injuring him to establish both the substantial step element of attempted murder and the resulting serious bodily injury element of class C felony resisting law enforcement, resulting in a violation of double jeopardy principles,” Judge Terry Crone wrote.

The appellate court ordered that the Class C felony resisting law enforcement conviction be reduced to a Class D felony and that the sentence imposed is the advisory 18 months. It will be served consecutively to Zieman’s attempted murder sentence, for a total executed sentence of 33 ½ years.

 

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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