Indiana Court Decisions: April 20-May 3, 2023

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7th Circuit Court of Appeals

April 26

Indiana Right to Life Victory Fund and Sarkes Tarzian, Inc. v. Diego Morales, et al.


7th Circuit asks IN Supreme Court to consider dispute about corporate contributions to PACs

The 7th Circuit Court of Appeals is asking the Indiana Supreme Court to consider whether state law prohibits or otherwise limits corporate contributions to political action committees or other entities that engage in independent campaign-
related expenditures.

The certification of a question to the state’s high court comes in a case involving Indiana Right to Life Victory Fund, which wants to operate as an independent-expenditure PAC — commonly called a super PAC — in Indiana but fears the state’s election laws won’t allow it to accept donations from corporations, or that there would be a cap on how much those corporations could donate.

The group believes that would be a violation of its First Amendment rights, so it and a private company — Sarkes Tarzian Inc. — went to federal court seeking to prevent Indiana from enforcing its campaign-finance laws to limit or ban corporate contributions to super PACs.

Sarkes, an Indiana-based TV and radio company, wants to make a $10,000 contribution to the fund, according to an appellants’ brief.

But Indiana’s election officials say they have no intent to enforce the laws that way, and that doing so would be a violation of the First Amendment.

The U.S. District Court for the Southern District of Indiana, Indianapolis Division, found the fund did not allege a credible threat and dismissed the lawsuit for lack of standing.

The fund and Sarkes appealed.

In response, the 7th Circuit certified a question to the Indiana Supreme Court, ruling the state’s high court is the only body that can definitively construe Indiana election laws. The question is: “Does the Indiana Election Code — in particular, §§ 3-9-2-3 to -6 — prohibit or otherwise limit corporate contributions to PACs or other entities that engage in independent campaign-
related expenditures?”

In its opinion, the 7th Circuit said the fact that Indiana election officials apparently see no real conflict with the fund’s wishes “sounded alarm bells for the district court, and it does for us too.”

The court noted that because the plaintiffs brought a pre-enforcement challenge, if they don’t allege a “credible threat of prosecution,” federal courts lack subject-matter jurisdiction no matter how strong the merit positions might be on either side.

Election officials argued the fund failed to allege a credible threat because Indiana election law doesn’t cover corporate contributions to super PACs. The election officials also argued that if a statute is “clearly unconstitutional,” there can be no credible threat.

“Yet the Fund — arguing, seemingly against its self-interest, that the Election Code does restrict corporate contributions to independent-expenditure PACs — presses some sound points of its own,” the opinion states.

The fund pointed to sections in election code that limit corporate contributions. And, citing Wisconsin Right to Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014), the fund argued the court can’t “adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent.”

“We are therefore hesitant to constrain state law too quickly — even at the behest of state officials,” the opinion states.

The court also noted that current state officials’ promises to not enforce a statute are weighed less heavily, especially because they can’t bind their successors in office.

“What all this means is that the Fund’s standing to bring this case is in serious question,” the opinion states. “On the one hand, Indiana’s Election Code may not even regulate the Fund’s desired conduct, meaning the Fund would face no credible threat of an injury. But resolving this question would require us to interpret an Indiana state statute where both sides have advanced credible positions. On the other hand, Indiana officials say they will not enforce the Election Code in the way that concerns the Fund.”

Before getting into a “fine-grained constitutional analysis” of two related cases — Citizens United v. FEC, 558 U.S. 310 (2010), and Wisconsin Right to Life State Political Action Committee v. Barland, 664 F.3d 139 (7th Cir. 2011) — the 7th Circuit noted the U.S. Supreme Court has instructed federal courts to ensure any conflict between state law and the First Amendment is not “purely hypothetical.”

“To that end, when we are faced with both statutory and constitutional questions, we must prioritize resolving the statutory issues if doing so would prevent us from engaging in unnecessary constitutional analysis,” the opinion states.

And noting the U.S. Supreme Court’s guidance that the best way to resolve a question of state law could be through the state’s highest court, the 7th Circuit concluded certification to the Indiana Supreme Court is the best course of action.

Certification is appropriate because answering the question “will likely resolve the case,” the opinion states, and it doesn’t appear any state court has addressed the issue.

The appellate court said nothing in its opinion should be construed to limit the inquiry, and it welcomed the justices to reform the question.

Judge Michael Scudder wrote the opinion. Judges Frank Easterbrook and John Lee concurred.

The case is Indiana Right to Life Victory Fund and Sarkes Tarzian, Inc. v. Diego Morales, et al., 22-1562.


April 27

Brian Hope, et al. v. Commissioner of Indiana Department of Correction, et al.


7th Circuit again reverses judgment for sex offenders who challenged registration requirement

Requiring sex offenders who are already subject to registration elsewhere to also register in Indiana rationally promotes public safety, the 7th Circuit Court of Appeals has ruled in reversing a district court’s judgment. This is the second reversal in the case.

The plaintiffs in the case are Indiana residents who committed sex offenses either before the Indiana Sex Offender Registration Act existed or before it covered their specific offenses.

Their registration obligations vary depending on their offenses, but they all must register under SORA at least once annually. They also must comply with various restrictions — such as staying off school property — and notify law enforcement before leaving their residences for more than 72 hours.

SORA applies to sex offenders who committed crimes before its enactment in 1994. But the Indiana Supreme Court in Wallace v. State, 905 N.E.2d 371 (Ind. 2009), limited SORA’s retroactive application under the Indiana Constitution’s ex post facto clause.

As a result, Indiana ordinarily cannot require pre-SORA offenders to register because doing so would be punitive and strip offenders of their right to fair notice.

However, the 7th Circuit opinion says the plaintiffs’ situations in the instant case are different. Even though they are all pre-SORA offenders, they each have a registration obligation in another jurisdiction because they either moved to Indiana from another state or left Indiana for some period before returning.

The Indiana Supreme Court has determined that requiring the registration of individuals who already have a separate registration obligation in another state does not violate Indiana’s ex post facto clause. The court has also concluded that SORA’s other-jurisdiction provision “undoubtedly” advances a legitimate and nonpunitive interest by alerting and protecting the community from offenders with a “frighteningly high risk of recidivism.”

The plaintiffs filed a lawsuit alleging that SORA violates the federal ex post facto clause, their right to travel under the 14th Amendment’s privileges or immunities clause and their right to equal treatment under the 14th Amendment’s equal protection clause.

The Indiana Southern District Court granted summary judgment to the plaintiffs on all claims and, on appeal, the 7th Circuit affirmed in Hope v. Comm’r of Ind. Dep’t of Corr., 954 F.3d 532 (7th Cir. 2021) (vacated).

But after hearing the case en banc, the full 7th Circuit reversed, holding that SORA does not violate either the right to travel or the federal ex post facto clause. The court also reversed the district court’s grant of summary judgment on the equal protection claim, holding that the other-jurisdiction provision does not trigger heightened scrutiny, and remanded for the district court to determine in the first instance whether SORA passes rational basis review.

On remand, the district court concluded the answer was no, ruling the provision is not rationally related to any legitimate government interest. Thus, it granted summary judgment for the plaintiffs on their equal protection claim.

But the 7th Circuit reversed again, ruling that although the Indiana Constitution has restraints that have resulted in an “imperfect” classification system, it’s not irrational for Indiana to require as many sex offenders to register as the state Constitution permits.

“Even if a risk posed by two groups of offenders is identical, a state may have a rational reason for treating them differently,” the opinion states. “… Requiring offenders who are already subject to the burdens of registration elsewhere rationally promotes public safety through the maintenance of a sex-offender registry that is as complete as the Indiana Constitution permits.”

Judge Thomas Kirsch wrote the opinion. Judges Frank Easterbrook and St. Eve concurred.

The case is Brian Hope, et al. v. Commissioner of Indiana Department of Correction, et al., 22-2150.

Indiana Supreme Court

May 3

Matthew H. Thomas Davis v. State of Indiana


Majority justices dismiss sentencing appeal, but dissent points to erroneous trial court statement

A man who waived his right to appeal his four-year sentence for theft cannot challenge that sentence on direct appeal, the Indiana Supreme Court ruled in dismissing the man’s appeal. Two dissenting judges, however, would hold that the appeal waiver is unenforceable due to a trial court error.

Justice Derek Molter wrote for the majority in Matthew H. Thomas Davis v. State of Indiana, 22S-CR-253, joined by Justices Mark Massa and Geoffrey Slaughter.

Matthew Davis pleaded guilty to Level 5 felony burglary and Level 6 felony theft in one case and two counts of Level 6 felony receiving stolen auto parts in another. As part of his plea agreement, he waived his right to appeal his sentence.

Davis was sentenced to an aggregate term of four years for both cases, with two years served in the Indiana Department of Correction and two years on community corrections.

But at the plea hearing, the Madison Circuit Court erroneously said, “The one exception is because you have a plea agreement that provides the court some discretion about where your sentence is, in a certain range, you would have the ability to appeal my use of discretion in that sentencing.”

No one corrected that statement.

Davis appealed his sentences, but the Court of Appeals of Indiana issued sua sponte orders dismissing his appeals.

The Supreme Court majority likewise dismissed his case.

“Here, both Davis and his defense counsel signed a plea agreement with the State, which the trial court accepted. In exchange for a lower ceiling on his sentence, Davis agreed to waive his ‘right to appeal any sentence imposed by the Court, including the right to seek appellate review of the sentence pursuant to Indiana Appellate Rule 7(B), so long as the Court sentence[d] [him] within the terms of th[e] plea agreement,’” Molter wrote. “… In other words, he does not claim that when both he and his attorney signed the agreement waiving his appeal, he misunderstood what he was agreeing to or that his agreement was involuntary.”

The high court looked at whether the trial court’s misstatement misled Davis and addressed the option of vacating his conviction through post-conviction relief proceedings.

“In sum, Davis’s written plea agreement with the State, which both he and his attorney signed, unambiguously waived his right to appeal his sentence,” Molter wrote. “If Davis’s guilty plea was nevertheless not knowing and voluntary because the trial judge’s misstatements misled him about which rights he was waiving, then Davis may demonstrate that through post-conviction proceedings, and his conviction can be set aside. That would restore his right to appeal any sentence and all other rights he waived through his plea agreement and guilty plea.”

Justice Christopher Goff wrote a separate dissenting opinion, which Chief Justice Loretta Rush joined.

“I would hold … that the appeal waiver is unenforceable because Davis was affirmatively advised by the trial court, before entry of his guilty plea, that he would retain the right to appeal,” Goff wrote.

“And, because the appeal waiver can be severed from the rest of Davis’s plea agreement, he should be allowed his appeal, rather than having to make an ‘all or nothing’ challenge to his plea. Allowing Davis to appeal is the only result which fully preserves his unwaived right to do so.”

Court of Appeals of Indiana

April 25

William R. Brittingham, III v. State of Indiana


Man can be tried in 2nd case involving kidnapping incident, COA affirms

A trial court can prosecute a Lake County man for a second case that involved alleged criminal acts against his girlfriend and another man, the Court of Appeals of Indiana affirmed.

The appellate court also remanded the case to the trial court for further proceedings, rejecting the man’s appeal and ruling the state’s Successive Prosecution Statute did not apply in his case.

In the case, William R. Brittingham III suspected his girlfriend was romantically involved with another man.

When the girlfriend and other man arrived at work at the Dollar Tree in Merrillville in January 2022, Brittingham was waiting for them in the parking lot, according to court records.

Brittingham pulled his girlfriend out of a car, slammed her against the glass, handcuffed her and threw her in his vehicle.

He drove from the Dollar Tree parking lot to a nearby Meijer, got out of his vehicle and punched the other man several times.

Brittingham also displayed a firearm.

He then returned to his vehicle and drove away with his girlfriend in his vehicle, going to a house he shared with his girlfriend.

Brittingham forced his girlfriend into another vehicle and then drove west along Interstate 80.

During the drive, he phoned several friends and family members and threatened to kill himself and his girlfriend.

Law enforcement in Nebraska tracked Brittingham’s cellphone location and arrested him.

Brittingham was charged in January 2022 with multiple counts of felony kidnapping and criminal confinement with his girlfriend as the victim, as well as felony intimidation, pointing a firearm and misdemeanor battery for the other man.

In a second case brought before the court in February 2022, Brittingham was charged with the lone count of Class A misdemeanor battery for his actions involving the other man.

He pleaded guilty in the second case and was sentenced to 180 days in jail.

In May 2022, Brittingham moved to dismiss the charges pending against him in the first case.

He argued that the charges in the first and second case stemmed from the same incident and should have been joined under the same cause and not two separate ones.

Brittingham filed a motion for interlocutory appeal and the Court of Appeals of Indiana accepted jurisdiction over the appeal in September 2022.

The appellate court affirmed the trial court’s decision and ruled the Successive Prosecution Statute did not bar the state from prosecuting Brittingham for his alleged criminal acts in the first case, even though he had pleaded guilty to battery in the second case.

“The criminal acts underlying the two cases involved different victims, occurred at different times and in different places, and were fueled by distinct intentions,” said Judge Melissa May, writing for the court.

May wrote neither the Successive Prosecution Statute nor Indiana Code Section 35-34-1-10 have been interpreted “to automatically bar successive prosecutions for separate offenses that occurred at the same time or during the same general criminal episode.”

Brittingham’s alleged criminal acts against his girlfriend and his battery of the other man were not part of a single scheme or plan, May wrote.

Judges Leanna Weismann and Peter Foley concurred.

The case is William R. Brittingham, III v. State of Indiana, 22A-CR-1974.


April 28

Matthew G. Cranfill, as Personal Representative of the Estate of Josephine F. Cranfill, Deceased v. State of Indiana Department of Transportation


INDOT immune from liability in woman’s traffic death at Hendricks Co. intersection

The Indiana Department of Transportation is immune from liability in a case involving a woman killed in a collision at an intersection, the Court of Appeals of Indiana has affirmed.

In October 2019, Josephine Cranfill was a front seat passenger in a vehicle traveling east on County Road 1000 North in Hendricks County. The driver stopped at a stop sign at an intersection with State Road 267.

While traffic on County Road 1000 North was required to stop, traffic on S.R. 167 was not.

When the driver attempted to cross the road, his vehicle was struck by another driver’s vehicle, which was traveling north. That vehicle struck the passenger side of the car Josephine was in, killing her.

INDOT had been aware of a history of “right angle crashes” at that intersection since about 2014, and it installed additional signage at the intersection, including oversized stop signs and reflective strips.

There were additional concerns during the summer of 2019 because Interstate 65 was closed and traffic was routed to S.R. 267.

At the time of the collision, the speed limit on S.R. 267 was 55 miles per hour. Shortly after the collision, the department reduced the speed limit to 45 mph until a traffic signal was installed in October 2020.

In October 2019, Matthew Cranfill, personal representative of the Estate of Josephine Cranfill, filed a complaint against the department and others, which he amended in April 2020.

Cranfill brought a wrongful death action against INDOT and alleged negligence via the department’s failure to maintain the intersection of S.R. 267 and County Road 1000 North in a reasonably safe condition. The department filed an answer and affirmative defenses and alleged, in part, that it was immune from liability pursuant to Indiana Code Chapter 34-13-3, the Indiana Tort Claims Act.

In June 2022, Cranfill filed a motion for partial summary judgment, arguing the department’s discretionary function immunity defense was inapplicable.

The department also moved for partial summary judgment, arguing it was immune under the discretionary function provision of I.C. 34-13-3-3(a)(7) and the adoption-of-laws provision of I.C. 34-13-3-3(a)(8) from Cranfill’s claim that it was negligent in failing to reduce the speed limit. The department also argued it was immune under I.C. 34-13-3-3(a)(18) from Cranfill’s claim that it was negligent in the design of S.R. 267.

The Putnam Circuit Court granted partial summary judgment to INDOT in August 2022, finding it was entitled to immunity under the adoption-of-laws and discretionary function provisions.

The department then filed a motion for entry of final judgment, arguing the immunity finding was a complete bar to Cranfill’s action. The trial court agreed and entered final judgment in favor of the department on Aug. 23, 2022.

Cranfill appealed, arguing the trial court erred by finding INDOT was entitled to immunity. Cranfill maintained the immunity provision didn’t apply because the department knew about a dangerous condition at the intersection and had ample opportunity to respond.

The Court of Appeals disagreed, finding the department is immune because its failure to lower the speed limit involved the “adoption and enforcement of or failure to adopt or enforce” a rule and/or regulation as cited in Indiana law.

In disagreeing with Cranfill’s argument, the court cited Indiana law that says the department has statutory authority to “alter” maximum speed limits.

The appellate court cited also a previous case — Holiday Rambler Corp. v. Gessinger, 541 N.E.2d 559 (Ind. Ct. App. 1989) — in which the court found the state was immune from liability for failing to reduce the posted maximum speed limit. The COA noted it has reached similar results in the context of other governmental entities.

Judge Elizabeth Tavitas wrote the opinion. Judges Nancy Vaidik and Peter Foley concurred.

The case is Matthew G. Cranfill, as Personal Representative of the Estate of Josephine F. Cranfill, Deceased v. State of Indiana Department of Transportation, 22A-CT-2062.


Bryan C. Falletti v. State of Indiana


Illuminated blue lights ‘on’ private vehicles are only for volunteer firefighters

Writing on a “clean slate,” the Court of Appeals of Indiana has affirmed a finding that a man who had blue lights on the inside of his car committed an infraction.

The case involves Indiana Code § 36-8-12-11(a), which allows members of volunteer fire departments to have illuminated blue lights on their privately owned vehicles when they’re on their way to emergency scenes or to the fire station.

But people who are not part of a volunteer fire department cannot have illuminated blue lights on their car. Pursuant to I.C. 36-8-12-11(e), doing so is a Class C infraction.

Bryan Falletti was driving on U.S. 136 in Warren County when Indiana State Police Trooper Jonathan Fulfur saw blue lights coming from the vehicle. Fulfur stopped Falletti and issued him a citation for the lights.

A bench trial was held on Feb. 24, 2022, and Falletti acknowledged that he was not a volunteer firefighter. But he argued that the statute refers to blue lights on the outside of the vehicle, while his were on the inside.

The Warren Circuit Court issued a written order entering judgment and a fine against Falletti for a Class C infraction. The trial court’s judgment stated, “Here, the statute refers to a light ‘on’ the vehicle and does not limit it to being affixed on the interior or exterior.”

Falletti filed a motion to correct error, which was denied.

He then appealed, arguing the trial court erred in determining he violated the statute. He claimed the “on a vehicle” language is ambiguous, and the rule of lenity should apply in his favor.

Falletti also argued that subsection (c) only prohibits the general public from displaying blue lights of the type and in locations described in subsection (a).

The statute hasn’t been interpreted before, so the COA said it was writing on a clean slate.

“Applying the plain and ordinary meaning of the language in section 36-8-12-11 in a manner consistent with the policy and goals of the statute, volunteer firefighters may display blue lights in limited places on their vehicles visible to the public, but non-volunteer firefighters may not display blue lights visible to the public at all,” Judge Margret Robb wrote. “Although this conclusion is based on the plain and ordinary meaning of the statute, even if there were conflicting reasonable interpretations, applying the canons of statutory construction would lead us to the same outcome.”

Additionally, the COA ruled that the statute is not limited to lights affixed to the exterior of a vehicle.

“We also conclude the interpretations urged by Falletti would produce absurd results,” Robb added.

Lastly, looking at the lenity rule, the appellate court found the rule only applies when ambiguity remains after consulting traditional canons of statutory construction.

“Falletti does not claim to be a volunteer firefighter and he does not contest that the blue lights in question were clearly displayed,” Robb concluded. “He therefore committed a Class C infraction by displaying illuminated blue lights in his rear window.”

The case is Bryan C. Falletti v. State of Indiana, 22A-IF-1066.


Michael Charles Thomas Gaunt v. State of Indiana


Double jeopardy rights weren’t violated in aggravated battery case, but credit was miscalculated

A man who was convicted for the death of his infant son didn’t have his double jeopardy rights violated when both of his charges were elevated to Level 1 felonies, the Court of Appeals of Indiana has affirmed. But the appellate court reversed the man’s sentencing order for an improper calculation of time served and good time credit.

Michael Gaunt was charged in December 2019 with aggravated battery to a child less than age 14 and neglect of a dependent. The charges stemmed from an incident when Gaunt was watching his infant son, L.G., while the mother, Harley Jones, was out of the house.

When Jones returned, she saw Gaunt holding L.G., who appeared naked, lifeless, blue and not breathing. Gaunt wouldn’t let Jones call 911 for about 45 minutes.

Emergency responders took L.G. to the hospital, where he was alive but unresponsive. L.G. was diagnosed with fractures in his right humerus and clavicle, “massive retinal hemorrhages,” hemorrhages between his brain and skull and within his brain, and swelling around his neck vertebrae. Physicians attributed the injuries to “[s]evere physical abuse including abusive head trauma.”

Gaunt was arrested Dec. 21, 2019, and L.G. died two days later.

Both charges against Gaunt were elevated to Level 1 felonies based on L.G.’s death.

On Jan. 28, 2022, Gaunt and the state executed a plea agreement, and the Marion Superior Court set a sentencing hearing for the next month. The presentencing investigation report showed Gaunt had been in jail since Dec. 21, 2019, and would have served 790 actual jail days by the time the trial court held the Feb. 17, 2022, sentencing hearing.

Gaunt withdrew his plea agreement at the sentencing hearing.

The Marion Superior Court held a bench trial on April 25, 2022, and found Gaunt guilty of both counts. The court then set a sentencing hearing for June 23, 2022.

The state filed a second presentencing investigation report, which showed Gaunt would have served 916 actual days as of the court’s June 23 sentencing hearing.

The court sentenced Gaunt to two concurrent 35-year sentences, each with two years to be served in community corrections and three years suspended to probation. The court’s sentencing order reflects that Gaunt had been in jail since April 24, 2020, had served 790 actual days and had earned 263 days of good time credit.

Gaunt appealed, arguing the trial court erred by elevating both of his convictions to Level 1 felonies because doing so constituted double jeopardy given that both were in relation to L.G.’s death.

The Court of Appeals disagreed.

In its opinion, the court cites two Indiana Supreme Court cases — Wadle v. State, 151 N.E.3d 227 (Ind. 2020), and Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020) — that lay out the framework for analyzing whether a defendant’s convictions violate principles of substantive double jeopardy.

Gaunt maintained that elevating both of his convictions constitutes double jeopardy under one of the common-law rules identified in another case — Richardson v. State, 717 N.E.2d 32 (Ind. 1999) — but the court’s opinion notes Wadle and Powell overruled Richardson.

The court applied the Wadle test to affirm the convictions.

The opinion states Gaunt “might have been entitled to relief under the common-law elevation rule” he cited, but the court agreed with the state that in overruling Richardson, Wadle also replaced the common-law double jeopardy rules with its own test.

“Accordingly, we cannot consider Gaunt’s reliance on the common-law elevation rule,” the opinion states. “Further, because Gaunt raises no argument that his convictions constitute double jeopardy under Wadle, we cannot say that Gaunt’s double jeopardy rights were violated.”

Gaunt also argued the trial court erred by only giving credit for 790 actual days and 263 days of good time credit at the time of sentencing. He said he is entitled to a credit of 916 actual days and 305 days of good time credit.

Here, the Court of Appeals agreed, as did the state.

“The trial court appears to have found that Gaunt was only entitled to credit for 790 actual days based on the February PSI report, but that PSI report was outdated by the time Gaunt was sentenced on June 23, 2022,” the opinion states. “We cannot discern why the trial court found that Gaunt was in jail only since April 24, 2020.”

The Court of Appeals also agreed Gaunt should have been assigned to Class B credit time classification and was entitled to one day of good time credit for every three days of the 915 actual days he served awaiting trial, which amounts to 305 days of good time credit.

The COA thus remanded with instructions that the trial court’s sentencing order reflect Gaunt’s presentencing credit time to reflect those numbers.

Judge Elizabeth Tavitas wrote the opinion. Judges Nancy Vaidik and Peter Foley concurred.

The case is Michael Charles Thomas Gaunt v. State of Indiana, 22A-CR-1632.


May 1

Ty Evans v. State of Indiana


Man secures reversal after trial court denies successive PCR petition in attempted murder case

A man whose attempted murder sentence was enhanced by 30 years has secured a post-conviction reversal in his favor, with the Court of Appeals of Indiana focusing on the chronological order of two convictions underlying a habitual offender enhancement.

Appellant-petitioner Ty Evans was sentenced to an enhanced term of 71 years after being convicted in 2005 of Class A felony attempted murder and Class A misdemeanor resisting law enforcement, plus a habitual offender adjudication. Without the habitual offender adjudication, the sentence would have been 41 years.

The habitual offender adjudication was based on a 1995 federal conviction for uttering a counterfeit obligation and a 1999 conviction in Kentucky of escape. Evans admitted to the two prior felonies during his trial.

On direct appeal, Evans had argued that the Marion Superior Court abused its discretion by denying his motions for mistrial and to continue, and that the prosecutor had committed prosecutorial misconduct during closing argument. The appellate court disagreed and affirmed.

He then filed for post-conviction relief, which was denied, and the denial was affirmed on appeal in 2012.

But in 2020, the COA granted Evans’ request to file a successive petition for post-conviction relief. In that petition, he sought to withdraw his guilty plea under Indiana Code s§ 35-35-1-4(c). The case then continued by affidavit.

Specifically, Evans filed an affidavit in which he averred that the trial court had not informed him that the commission dates of the underlying habitual offender offenses were relevant. He also averred that after he had worked on a habeas corpus petition, he obtained a copy of the June 1998 order amending the 1998 Kentucky indictment, which showed that the commission date of the Kentucky escape offense was 1994, not 1997.

However, a paralegal with the Marion County Prosecutor’s Office also filed an affidavit stating that they had obtained copies of the Kentucky case file, which included documents showing that the offense had occurred in 1997 or 1998.

Ultimately, the post-conviction court denied Evans’ successive petition, relying partially on the paralegal’s affidavit.

The court said it “reach[ed] the inevitable and somewhat obvious conclusion that Evans simply did not plead guilty,” so his motion to withdraw that plea was “improper and unavailable.” It also questioned the “provenance” of the amended Kentucky indictment that Evans had submitted.

On appeal, Evans, proceeding pro se, argued the post-conviction court erred in denying his successive PCR petition.

The Court of Appeals agreed, noting that the amended indictment Evans submitted was certified by the Kentucky clerk.

“The June 1998 order indicates that the commission date of Evans’ Kentucky escape offense occurred on November 7, 1994, which was prior to the commission of Evans’ 1995 federal conviction for uttering a counterfeit obligation,” Judge Rudolph Pyle wrote. “However, Evans was convicted and sentenced on his 1995 federal conviction prior to being convicted and sentenced on his Kentucky escape offense.

“In other words, the post-conviction evidence submitted by Evans shows that he: committed the Kentucky escape offense in 1994; committed and was convicted and sentenced in 1995 for the federal uttering a counterfeit obligation offense; and was convicted and sentenced in 1999 for the Kentucky escape offense,” Pyle wrote. “Because Evans demonstrated that he was not an habitual offender under the laws of the state and that his two convictions did not in fact occur in the required order, we reverse the post-conviction court’s denial of relief to Evans and remand to the court with instructions to issue an amended abstract of judgment consistent with this opinion.”

The case is Ty Evans v. State of Indiana, 22A-PC-220.•

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