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Supreme Court grants 3 transfers

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The Indiana Supreme Court granted three transfers Wednesday, including a case of first impression on sentence enhancements.

Joshua G. Nicoson v. State of Indiana, No. 32S04-1003-CR-150, is a case of first impression that divided the Indiana Court of Appeals about whether Joshua Nicoson's sentence enhancement based on his use of a deadly weapon violated double-jeopardy principals. The majority affirmed his 5-year sentence enhancement for the use of a firearm following Nicoson's convictions of criminal confinement with a deadly weapon and pointing a firearm.

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. The enhancement provision refers to actual use.

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.

In Richard Patrick Wilson and Billy Don Wilson v. Gene Isaacs, Sheriff of Cass County, and Brad Craven, No. 09S05-1003-CV-149, the Court of Appeals held the use of excessive force is not conduct immunized under Section 3(8) of the Indiana Tort Claims Act. It reversed summary judgment in favor of Cass County Sheriff Gene Isaacs in the Wilson brothers' suit alleging injuries as a result of excessive force. The appellate court noted there has been some confusion whether the ITCA law enforcement immunity provision applies to claims for injuries resulting from the use of excessive force during detention or arrest.

There are questions about whether Kemezy v. Peters, 622 N.E.2d 1296 (Ind. 1993), still remains good law. In Kemezy, the Supreme Court found law enforcement officers owe a private duty to refrain from excessive force when making arrests and the use of excessive force isn't immunized by Section 3(8). The judges followed the U.S. District Court for the Southern District of Indiana's reasoning on Kemezy to conclude the use of excessive force is not conduct immunized under section 3(8) of the ITCA.

In In the matter of the involuntary termination of the parent-child relationship of I.A.; J.H. v. Indiana Department of Child Services, No. 62S01-1003-JV-148, the Court of Appeals unanimously affirmed the involuntary termination of father J.H.'s parental rights in the not-for-publication decision. The father argued the Department of Child Services didn't prove by clear and convincing evidence that the conditions that resulted in I.A.'s removal wouldn't be remedied and that his relationship with his son threatened I.A.'s well-being. He argued it was I.A.'s mother's behavior and acts of negligence and not his that led to I.A.'s initial removal from his mother's home.

The Court of Appeals found sufficient evidence, such as J.H. hadn't bonded with his child and he lacked proper parenting skills after months of training.

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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