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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 voices of the prophets are more on blogs than subway walls these days, Dawn. Here is the voice of one calling out in the wilderness ... against a corrupted judiciary ... that remains corrupt a decade and a half later ... due to, so sadly, the acquiescence of good judges unwilling to shake the forest ... for fear that is not faith .. http://www.ogdenonpolitics.com/2013/09/prof-alan-dershowitz-on-indiana.html

  2. So I purchased a vehicle cash from the lot on West Washington in Feb 2017. Since then I found it the vehicle had been declared a total loss and had sat in a salvage yard due to fire. My title does not show any of that. I also have had to put thousands of dollars into repairs because it was not a solid vehicle like they stated. I need to find out how to contact the lawyers on this lawsuit.

  3. It really doesn't matter what the law IS, if law enforcement refuses to take reports (or take them seriously), if courts refuse to allow unrepresented parties to speak (especially in Small Claims, which is supposedly "informal"). It doesn't matter what the law IS, if constituents are unable to make effective contact or receive any meaningful response from their representatives. Two of our pets were unnecessarily killed; court records reflect that I "abandoned" them. Not so; when I was denied one of them (and my possessions, which by court order I was supposed to be able to remove), I went directly to the court. And earlier, when I tried to have the DV PO extended (it expired while the subject was on probation for violating it), the court denied any extension. The result? Same problems, less than eight hours after expiration. Ironic that the county sheriff was charged (and later pleaded to) with intimidation, but none of his officers seemed interested or capable of taking such a report from a private citizen. When I learned from one officer what I needed to do, I forwarded audio and transcript of one occurrence and my call to law enforcement (before the statute of limitations expired) to the prosecutor's office. I didn't even receive an acknowledgement. Earlier, I'd gone in to the prosecutor's office and been told that the officer's (written) report didn't match what I said occurred. Since I had the audio, I can only say that I have very little faith in Indiana government or law enforcement.

  4. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  5. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

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