Marilyn Odendahl for www.theindianalawyer.com
Former Indiana Secretary of State Charlie White, convicted of voter fraud and removed from office, had three of his six convictions overturned by the Indiana Court of Appeals Dec. 29 and will have to serve his sentence of one year of electronic home monitoring.
White raised several arguments on appeal, including insufficient evidence, errors in jury instructions, prosecutorial misconduct and ineffective counsel. However, he was most successful on the claims he did not raise.
The Court of Appeals found two double-jeopardy violations. It noted White did not make these arguments on appeal but the court was raising the issue sua sponte because a double-jeopardy violation implicates fundamental rights.
The 55-page opinion in Charles P. White v. State of Indiana, 29A05-1312-PC-641, was written by Chief Judge Nancy Vaidik and was unanimous.
Specifically, the Court of Appeals concluded White was convicted and punished twice for making a false statement regarding his address on his voter registration. Also, he was convicted and punished twice for voting in the wrong township during the May 2010 primary election. It reversed one conviction for perjury and one conviction for voting in the wrong precinct and remanded to the trial court to vacate the convictions.
In the footnotes of its 55-page opinion, the Court of Appeals highlighted problem areas in the state statute and recommended the Legislature amend.
First, it pointed to Indiana Code 3-14-3-1.1(1) which requires the individual submit multiple materially false, fictitious or fraudulent applications. White contended that to violate the statute, an individual would have to turn in several applications. The state argued that interpreting the statutes to require more than one application would lead to absurd results and excuse a legitimate instance of voter fraud.
The Court of Appeals noted the code is written in the plural and nudged the Legislature to amend the language.
Second, the Court of Appeals recommended the Legislature examine I.C. 3-5-2-3 which regulates paper ballots, ballot cards or ballot labels. White asserted the statute does not apply in his case because he used electronic voting, and even the state conceded the statute does not account for new voting technology.
The Court of Appeals held that since electronic voting systems will be used increasingly in the future, the Legislature should amend the statute’s definition of “ballot†to be more inclusive.
The Court of Appeals reversed White’s perjury conviction for putting the wrong address on his marriage license application. The Court found his street address was not material to the application. However, the appellate court pointed out that supplying false information to the Circuit Court clerk when applying for a marriage license is a felony. It hinted the conviction might have stood if White had been charged with furnishing false information instead of perjury.
The Court of Appeals affirmed White’s other convictions for perjury, voting in the wrong precinct and theft. It also concluded White’s attorney, Carl Brizzi, was not ineffective.
