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Justices to hear sentencing, sex offender, parental rights cases

March 21, 2018

The Indiana Supreme Court will consider sentencing practices, sex offender restrictions and parental rights when it hears oral arguments in three cases Thursday.

Oral argument in Marquell Jackson v. State of Indiana, 18S-CR-00113, will focus on the question of what authority, if any, a trial court has to resentence a defendant when a criminal gang enhancement is overturned. That question became pertinent after the Indiana Court of Appeals reversed Marquell Jackson’s criminal gang enhancement after finding fundamental error in the charging language.

On rehearing, the appellate court clarified that its order to the trial court on remand was to vacate the enhancement, not to resentence Jackson. Writing on an issue of first impression, Judge Edward Najam said because criminal gang enhancements carry their own sentences, the reversal of the enhancement did not warrant resentencing on any of Jackson’s other convictions under Indiana Code section 35-50-2-15(e). Najam differentiated criminal gang enhancements from habitual offender enhancements by noting that the latter attaches to a specific sentence.

The state challenged that interpretation in its petition to transfer, which the Supreme Court granted and will consider at 9:45 a.m. Thursday.

After Jackson’s case, the court will hear Douglas Kirby v. State of Indiana, 18S-CR-00079. That case traces back to 2010, when Douglas Kirby was convicted of child solicitation and was ordered to serve 18 months on probation, which he completed.

Despite his conviction, Kirby was given explicit permission to visit his son’s school to watch him participate in school activities. However, when Indiana Code section 35-42-4-1-14 went into effect in 2015, “serious sex offenders” such as Kirby who entered school property became subject to a Level 6 felony charge.

Kirby sought post-conviction relief from the statute, which the trial court denied but the appellate court granted. Judge Cale Bradford wrote in an August opinion that the statute was an unconstitutional retroactive punishment as applied to Kirby.    

Argument in Kirby was originally scheduled for March 9 but was rescheduled for 10:30 a.m. Thursday after the state’s counsel was diagnosed with the flu, making him unable to appear in court.

The justices will also hear one case on petition to transfer tomorrow. In the Matter of the Adoption of J.R.O. (J.O. v. A.T.), 82A05-1706-AD-01331, involves the question of whether a father’s consent to his son’s adoption was irrevocably implied by the father’s failure to file a written motion contesting the adoption. Though the Vanderburgh County adoption had already been granted, the Court of Appeals reversed in November after finding the father’s consent was not implied.

A.T. and M.H., the adoptive parents, have petitioned the Supreme Court for review and will argue their case at 9 a.m. Thursday. Supreme Court oral arguments also may be viewed online here.

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