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COA corrects erroneous conclusion in footnote in post-conviction case

May 8, 2017

After granting rehearing to correct an error in a footnote of an earlier opinion, the Indiana Court of Appeals has affirmed its March decision to give a Franklin County man a second chance at post-conviction relief.

In its first opinion in David Earl Ison v. State of Indiana, 24A04-1607-PC-1618, a unanimous panel of the appellate court found the Franklin Circuit Court had erroneously concluded David Ison’s 2015 petition for post-conviction relief was not properly before the court. The trial court should have considered Ison’s various claims in that petition, including claims of ineffective assistance of counsel and his claim that his guilty plea to murder was not knowing, intelligent and voluntary, the Court of Appeals held.

The case was remanded with instructions to the trial court to make specific findings of fact and conclusions of law with respect to those two claims. Additionally, in the third footnote of the March opinion, the appellate panel disregarded Ison’s argument that he was not eligible for the death penalty or life without parole, the sentence he received, because the aggravators alleged by the state did not fall under Indiana Code 35-50-2-9(b)(1).

“Ison’s argument takes advantage of a clear error in the statute,” the appellate panel wrote in the March footnote. “In subsections (d), (e), and (g), the statute indicates that the judge or jury (whichever is applicable) must find at least one of the aggravators ‘described in subsection (1).’ The reference should be to subsection (b), as subsection (1) is only one of the statute’s many listed aggravators. This is an obvious technical error in the statute.”

However, in its Monday opinion, the appellate panel wrote its conclusion in the footnote was erroneous, though the judges did not elaborate on the error.  Thus, the appellate panel granted rehearing to delete the paragraph of the footnote containing the erroneous conclusion, but affirmed its March decision in all other respects.
 

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