Indiana Supreme Court

Fortson v. State, 82S04-0811-CR-592

01-21-10, Ind

Attorney: Matthew McGovern

Holding: Mere unexplained possession of stolen property is no longer sufficient for conviction of theft, overruling forty-year rule allowing theft conviction under such circumstances. See Bolton v. State, 254 Ind. 648, 261 N.E.2d 841 (1970). Possession is to be considered along with other evidence, such as how recent or distant in time possession was from moment item was stolen and circumstances of possession, such as whether possession was next door or miles away from place item was stolen.

In so holding, Court approved of following theft instruction rejecting mere possession rule:

You are permitted . . . to infer from the possession of the property of another that the defendant is guilty of theft only if in your judgment such an inference is warranted by the evidence as a whole. . . . The possession of property by the defendant does not shift the burden of proof, which is always on the State every essential element of the offense . . . .

Common law rule that shifted burden of proof to defendant if prosecutor established defendant had exclusive and unexplained possession of stolen property is no longer acceptable.

Here, Court held that mere unexplained possession of a pick-up truck stolen from a parking lot was insufficient to support Defendant’s conviction for receiving stolen property under I.C. 35-43-4-2(b), because mere possession of the truck did not show that Defendant knew it was stolen. Held, transfer granted, Court of Appeals’ memorandum opinion vacated, conviction reversed.

Friday, February 26th, 2010 | Posted in Indiana Supreme Court | No Comments »

Hevner v. State, 27S02-1001-CR-5

12-9-09, Ind.

Attorney: David Payne

Holding: As applied to Hevner, amendment to I.C. 11-8-8-4.5 requiring person with only one conviction for possession of child pornography to register as a sex offender violates state constitution’s prohibition on ex post facto laws (Ind. Const. art. I, § 24) because when Hevner committed the offense, legislature had not yet amended the statute and first time offenders such as Hevner were not deemed sex offenders and were not required to register as such. Registration requirement added punishment beyond what statute allowed when Hevner committed the offense. However, ordering Hevner to not live within 1000 feet of a school was not erroneous because court may impose any term of probation related to rehabilitation (See I.C. 35-38-2-2.3(a)(14)) and protection of public. Carswell v. State, 721 N.E.2d 1255, 1259 (Ind. Ct. App. 1999); Hale v. State, 888 N.E.2d 314, 319 (Ind. Ct. App. 2008), trans. denied. Held, transfer granted, Court of Appeals’ memorandum opinion vacated, judgment reversed in part.

Friday, February 26th, 2010 | Posted in Indiana Supreme Court | No Comments »

Alvey v. State, 82S01-0902-CR-66

08-24-09, Ind.

Attorney: Michael Keating; Yvette LaPlante

Holding: A trial court lacks the authority to allow defendants the right to appeal the denial of a motion to suppress evidence when a defendant enters a guilty plea, even where a plea agreement maintains that such an appeal is permitted. To the extent that prior opinions of the Court of Appeals are inconsistent with this conclusion, the Court disapproves of them. See, e.g., Jones v. State, 866 N.E.2d 339 (Ind.Ct.App. 2007); S.A. v. State, 654 N.E.2d 791 (Ind.Ct.App. 1995). Here, Defendant pled guilty with a condition that he reserves his right to appeal the denial of his pre-trial motion to suppress. The State did not object to the condition and trial court advised Defendant he had the right to appeal the motion to suppress. But, despite the plea agreement’s statement, he could not plead guilty and challenge the denial of his pre-trial motion to suppress. Defendant cannot benefit from both the advantages of pleading guilty and the right to raise allegations of error with respect to pre-trial rulings; these rights are relinquished once defendants decide against facing an uncertain outcome at trial. Held, transfer granted, case remanded to trial court with instructions that Defendant shall have the option of proceeding with the current plea agreement (absent the right to appeal the suppression order). If he does not exercise this option within 90 days of this opinion being certified (unless extended by the trial court), the plea agreement shall be vacated. Boehm, J., dissenting on basis that there is no reason why the plea agreement should not be honored as it would be in several states and in the federal courts.

Monday, September 21st, 2009 | Posted in Indiana Supreme Court | No Comments »

State v. Cioch, 79S05-0902-CR-00092

07-01-09, Ind. 908 N.E.2d 1154

Attorney: Matthew S. Sandy; Teri A. Cummins

Holding: Trial court erred in suppressing breath test results merely because of an inaccurate timestamp on breath test printout. The breath test machine had not yet been adjusted to reflect daylight savings time and police officer wrote the actual time of day by hand on test results printed by the machine. 260 I.A.C. 1.1-4-8(6) provides: “[w]hen the printer stops, remove the EVIDENCE TICKET from the instrument and check the EVIDENCE TICKET for the numerical alcohol SUBJECT SAMPLE and correct date and time.” The administrative regulations are silent as to what course of action the operator should take if an anomaly occur. Court relied on Missouri Court of Appeals’ decisions holding that the wrong time and date on the breath machine print-out is not evidence of malfunction. See, e.g., Stuhr v. State, 766 S.W.2d 466, 469 (Mo.Ct.App. 1989) (“time and date component of the machine is a separate component from that of the sample collection portion of the unit”). Officer in this case followed each of required steps of procedure and did not do anything that calls into question the reliability of the instrument or the evidence ticket when he noticed the erroneous timestamp and wrote the actual time of day on it. Held, transfer granted, Court of Appeals’ memorandum opinion vacated, suppression order reversed

Tuesday, August 18th, 2009 | Posted in Indiana Supreme Court | No Comments »

State v. Hernandez, 45S00-0806-CR-377

07-30-09, Ind.

Attorney: Mark Small

Holding: Defendant, who is serving two life sentences for his 1975 murder convictions, is not eligible to seek parole under the statutes in effect at the time the murders took place, but can seek clemency through the Indiana Parole Board as many individuals have successfully done. Following White v. Ind. Parole Board, 713 N.E.2d 327 (Ind.Ct.App. 1999), Court noted that those inmates serving life sentences were not explicitly and specifically identified as eligible for parole by statute until 1979. Thus, a person under a life sentence in 1975 was not eligible to be considered for parole. To the extent that Johnston v. Dobeski, 739 N.E.2d 121 (Ind. 2000), held that a life sentence was indeterminate and that a prisoner serving a life sentence was eligible for consideration for parole, it is overruled. However, Court reaffirmed its holding in Johnston that the agreement between the prisoner and county prosecutor was valid. Held, post-conviction court affirmed in part, reversed in part, and remanded with instructions to enter judgment in favor of State.

Tuesday, August 18th, 2009 | Posted in Indiana Supreme Court | No Comments »