COA denies correction of sentencing order in dismissal

November 2, 2016

Because the plain language of Indiana Trial Rule 41(B) states that a dismissal operates as an adjudication upon the merits, the Indiana Court of Appeals found there is no need to remand a man’s case to correct his sentencing order as he claimed.

James L. McGraw got into an argument with Kristen Lance on Sept. 6, 2015, as she was removing her belongings from McGraw’s home. The two used to date, and she had lived with McGraw for part of the time when they were together. Lance’s mother went with her to McGraw’s home to get her stuff, during which McGraw came home. The two got into an argument outside and witnesses saw McGraw strike Lance in the face with the back of his hand.

McGraw was charged with two counts of Level 5 felony battery resulting in bodily injury to a pregnant woman and one count of Class A misdemeanor domestic battery. At a bench trial in February 2016, Lance was declared as an unavailable witness because she had invoked her Fifth Amendment rights to specific questions about McGraw’s bank account, and the state did not offer use immunity to her.

Her testimony was stricken from the trial and McGraw moved for involuntary dismissal of the charges under Trial Rule 41(B), which the court granted. The state was allowed to proceed with the lesser-included charge of Class A misdemeanor battery on one of the felony charges, for which McGraw was found guilty.

His appeal Wednesday deals with the sentencing order. He claimed while it shows the original charges were dismissed, it doesn’t designate that the dismissal of the charges constituted an adjudication of the charges on the merits. The state argued remand is unnecessary because Indiana’s successive prosecution and joined statutes would bar it from attempting to re-prosecute the dismissed charges.

“Indiana Trial Rule 41(B) clearly states that unless the trial court’s order specifies otherwise, a dismissal under Trial Rule 41(B) ‘operates as an adjudication upon the merits.’ In this case, the trial court’s order does not specify otherwise. As such, we conclude that there is no need to remand the case to correct the sentencing order,” Judge Cale Bradford wrote in James L. McGraw v. State of Indiana, 49A02-1603-CR-566.



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