Supreme Court affirms dismissal of firearm enhancement after COA reversed

Indiana Supreme Court justices vacated an appellate panel’s reversal on Tuesday, affirming the trial court’s dismissal of a firearm enhancement in a case involving a man who shot his roommate.

In 2017, Samuel Vande Brake shot Tristan Fernandez in the chest after a heated dispute. Vande Brake was charged with Level 3 felony aggravated battery, Level 5 felony battery by means of a deadly weapon, Level 5 felony battery resulting in serious bodily injury and Level 6 felony criminal recklessness.

One week after Vande Brake’s arrest, the State of Indiana moved to add a “use of firearm” sentence enhancement, which the trial court granted along with an additional charge of attempted murder and assigned a new case number. However, the state didn’t raise the firearm enhancement until after a jury found Vande Brake guilty on all four counts.

The trial court concluded it was “dismisse[d] as a matter of course,” and later denied the state’s motion to correct error. However, an Indiana Court of Appeals panel reversed and remanded with instructions for the trial court to impanel a new jury to hear the enhancement charge.

However, the Indiana Supreme Court granted transfer and unanimously affirmed the trial court in a per curiam order.

“We find clear waiver here. The State failed to: raise the firearm enhancement at any of nine pretrial conferences; inform the court that the enhancement was not listed as a charged offense in either CCS for the case; propose preliminary or final jury instructions relating to the enhancement; alert the trial court to the need for a bifurcated trial at any time before the court excused the jury; or object to the dismissal of the enhancement while the jury remained in the building,” the unanimous panel wrote.

Under these circumstances, the Supreme Court found that the state failed to meet its burden to show that the trial court’s implied finding of waiver and subsequent sua sponte dismissal of the firearm enhancement were contrary to law.

It therefore affirmed the trial court in the case of State of Indiana v. Samuel E. Vande Brake, 20S-CR-499.

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