Juvenile Courts Lack Jurisdiction to Waive Adults into Adult Court

Juvenile Courts Lack Jurisdiction to Waive Adults into Adult Cour

D.P./N.B. v. State, No. 20S-JV-443 (Ind. 9/8/20)

The Supreme Court has held in these combined cases that a juvenile court entirely lacks jurisdiction over anyone 21 or older, and thus cannot purport to “waive” such a person into adult court for acts committed before the person turned 18.  In both cases, in a situation that seems to arise all-too-frequently, information came to light that the defendants had committed child molesting before they turned 18, but the disclosures were not made by the victim(s) until after the defendant(s) had turned 21 (and before the victim turned 31).  The difficulty of course is what to do with these cases, as the defendants have aged out of the juvenile system but the statute of limitations for the acts has not passed.  Here, the State filed delinquency petitions in juvenile court but immediately requested a waiver to adult court for criminal proceedings.  The juvenile court in D.P. granted the request, while it was denied in N.B.  The Court of Appeals held in both cases that although the juvenile courts lacked jurisdiction to adjudicate either defendant to be a delinquent child, given their ages, they did possess the limited authority to consider whether to waive the defendants to adult court and face adult criminal charges for their conduct.  The Supreme Court granted transfer, disagreeing with the Court of Appeals.

The Court first held that a juvenile court clearly cannot adjudicate someone delinquent who is over 21 years old even if they committed delinquent acts before turning 18, confirming the holding in M.C. v. State, 127 N.E.3d 1178 (Ind. Ct. App. 2019).  The Court went on to say that the juvenile court jurisdictional and waiver statutes do not provide a “partial” exception to allow them to accept a delinquency petition against someone over 21 and then decide whether to waive the person to adult court.

The Court acknowledged the competing policy interests at play here—between not shortening the statute of limitations for child molesting and related offenses just because the offenses were committed before the defendant turned 18, versus punishing “adults . . . many years after their youthful offenses, without any opportunity for juvenile rehabilitation. . . .  Ultimately, however, we need not decide whose policy argument carries more weight.  We are bound by the plain language of the relevant juvenile-law provisions.”

In a footnote, the Court added, “The parties spend considerable time debating whether the State could directly file charges against D.P. and N.B. in adult criminal court if a juvenile court doesn’t have subject matter jurisdiction to conduct a waiver hearing.  However, that particular issue is tangential and not before us, as the delinquency petitions were filed in juvenile courts and the State never attempted to file charges in criminal court.”  In light of the Court’s holding here, attempting to file charges directly in adult court in situations with defendants like D.P. and N.B. seems to be the ONLY way to try to prosecute these cases.  A new round of appeals will have to settle the question of whether that is appropriate, in the absence of any legislative changes or clarifications.

Indiana Supreme Court Rewrites Double Jeopardy Rules

Wadle v. State, No. 19S-CR-340 (Ind. 8/18/20), Powell v. State, No. 19S-CR-527 (Ind. 8/18/20)

The Supreme Court has revisited and overruled its landmark double jeopardy case, Richardson v. State, 717 N.E.2d 32 (Ind. 1999).  It seems clear that in so doing, it has also effectively overruled virtually all double jeopardy cases in Indiana that have been decided since then.  That is not to say that the result in all those cases are now wrong, but the analysis in them likely is.  The trick will be trying to readjust and adapt to an entirely new test, or tests.  Jim Oliver (who gave a great outline on these cases in his Caselaw Update webinar this past Thursday) and I and many others are trying to figure out what this all means.

In Wadle, the defendant got into a fight in a bar, which continued outside, and culminated with Wadle getting in his vehicle, drunk, and twice striking a single victim with his vehicle before leaving the scene.  Wadle ultimately was convicted of F3 Leaving the Scene of an Accident, elevated based on Wadle committing the crime of F5 OWI resulting in SBI, and also was convicted of F5 OWI resulting in SBI.  On appeal, the State attempted to avoid a double jeopardy finding by noting that Wadle had struck the victim with his car twice, and so multiple convictions were allowed.  The Supreme Court disagreed and held only the F3 conviction could stand.

In Powell, the defendant fired multiple shots at a vehicle that had 3 occupants.  The defendant was convicted of 2 counts of attempted murder, as to 2 separately-identifiable victims, and acquitted of the 3^rd count as to a 3^rd potential victim.  There was sufficient evidence of Powell’s intent to kill each of the 2 victims, and the Supreme Court affirmed that double jeopardy did not prohibit 2 separate convictions.

In reaching these conclusions, the Court held that the “actual evidence” test for determining double jeopardy violations under Richardson was “largely untenable” and it was overruled.  Moreover, the Court concluded that constitutional double jeopardy protections only prohibit successive prosecutions for an offense following acquittal or conviction.  The Court said that multiple convictions within a single proceeding was instead a potential “substantive” double jeopardy problem that is controlled by statute and the evidence alleged and proved at trial.  Also, it is worth noting that although the Court clearly overruled the “actual evidence” test from the Richardson majority opinion, the status of the 5 categories of double jeopardy violations listed by Justice Sullivan in his separate concurrence—and which has been used as guidance in many cases since then apart from the “actual evidence” test—is unclear.  The Court in Wadle mentioned those categories but then noted, “while the cases cited by Justice Sullivan generally reflect longstanding principles of Indiana law, they may rely on overruled sources of Indiana authority or apply analyses under the Fifth Amendment to the United States Constitution.”  Thus, the validity of these 5 categories is also in doubt.

The replacement test from Wadle & Powell actually appears to be 2 slightly different tests, depending on the situation.  Specifically, the first question to ask is whether you are seeking multiple convictions for multiple acts that violate multiple statutes, as in Wadle; or if you are seeking multiple convictions for a single (or, arguably, multiple) acts that violate just one statute but harm multiple victims, as in Powell.  In the multiple statute scenario, the first step is to evaluate whether the language of either statute clearly permits multiple punishments, either expressly or by unmistakable implication.  If the statutes do so allow, there is no double jeopardy problem.  If it is unclear, you then proceed to analyze whether one offense is included within the other, either inherently or as charged, after applying the definition of “included offense” in Ind. Code 35-31.5-2-168.  If it appears one offense may be included in the other, the next step is to evaluate whether, after considering the charging language and evidence presented at trial, the defendant’s actions “were so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.”  In other words, the caselaw on the “continuous crime doctrine” is alive and well and now takes on new significance.  If the actions were part of a “single transaction,” multiple convictions are not allowed.

Applying this test to Wadle’s case, the Court compared F3 Leaving the Scene of an Accident-OWI + SBI with F5 OWI + SBI, and found no legislative intent that they allowed multiple punishments for the same conduct.  Next, the Court found that F5 OWI-SBI was included within the offense of F3 Leaving the Scene of an Accident as charged.  Then, the Court found that Wadle’s conduct was one continuous transaction, given that all the events took place within a matter of minutes, Wadle’s single purpose of harming one victim, and the prosecutor’s arguments that portrayed the events as “a virtually seamless string of events.”  Thus, only the conviction for F3 Leaving the Scene could stand and the OWI was vacated.

If there is a Powell, single-statute-multiple-victim situation, the lesser-included offense analysis doesn’t apply. Rather, the first question is whether the statute in question “contains a distinct unit of prosecution,” or basically whether its language allows multiple convictions if certain criteria are met.  For example, if a statute is “conduct-based,” it may only allow for a single conviction if the defendant commits one act but harms multiple persons, because the crime is complete when the conduct occurs; but, if the statute is “result-based” the defendant may be convicted of multiple counts based on there being multiple victims, i.e. because there were multiple results.  If a statute does not contain a clear “unit of prosecution” and it is unclear whether it is a “conduct-based” or “result-based” statute, the analysis then turns, as under the Wadle test, on whether the defendant’s conduct amounted to a “single transaction” or more than one.  Any doubts about whether there were a single or multiple transactions are supposed to be resolved in favor of finding only one.

Applying this test to Powell’s case, the Court could not find that attempted murder contained a “distinct unit of prosecution,” or that it was clearly a “result-based” as opposed to a “conduct-based” statute.  Nonetheless, the Court held Powell’s conduct was not a single transaction.  Although the multiple shootings were highly compressed in terms of space and time, Powell had multiple purposes, i.e. intent to kill 2 different people.  This was enough to support the imposition of multiple attempted murder convictions.

As you can see, these cases are quite complex and will likely take years to completely unpack and clarify.

State “Waived” Ability to Seek Firearm Enhancement by Not Bringing it to Trial Court’s Attention Earlier

State v. Vande Brake, No. 20S-CR-499 (Ind. 8/4/20)

After Samuel Vande Brake shot his roommate, he was charged with several battery offenses, criminal recklessness, and attempted murder. A few weeks after the initial charging information was filed, the State was granted permission to amend it to add a sentencing enhancement for use of a firearm under Ind. Code § 35-50-2-11 and an initial hearing was held on that count. However, for some reason the amendment was not reflected in the CCS.  At pretrial conferences, prosecutors did not mention the firearm enhancement or the need for a bifurcated jury trial or special jury instructions, nor was it mentioned at the outset of trial. The jury found Vande Brake guilty of 3 battery offenses and criminal recklessness but not guilty of attempted murder. The judge then accepted the verdicts and “excused” the jury but asked them to wait in the jury room. After the jury left the courtroom, the prosecutor reminded the judge that the firearm sentencing enhancement was still outstanding. In response, the judge sua sponte dismissed the enhancement and concluded the trial. The State filed a motion to correct the error, which was denied and then appealed. The Court of Appeals reversed and ordered a new trial on the firearm enhancement.

However, the Supreme Court has granted transfer and reinstated the trial court’s ruling, barring trial on the enhancement.  The Court held that because IC 35-50-2-11 says the State “may” file a firearm enhancement, it also necessarily implies that the State can waive seeking the enhancement even after it is properly filed.  And the Court found a “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 moral of the story appears to be that prosecutors have an obligation to remind trial courts of filings such as this and/or bring errors in the CCS to its attention, or else waiver could be found.

State’s Failure to Ask for Stay during Interlocutory Appeal Leads to CR 4(C) Discharge

Battering v. State, No. 20S-CR-31 (Ind. 8/5/20)

Before his trial began for molesting and child solicitation, Brandon Battering successfully moved to suppress statements he made to police.  A prosecutor told defense counsel and the trial court that the State would seek an interlocutory appeal and a stay of proceedings during the appeal.  However, although the State did seek and obtain permission to file an interlocutory appeal, it originally did not apply for a stay; it only requested a “continuance” of the original trial date while the appeal was pending.  The State did eventually request a stay several months later.  While the appeal was pending, Battering moved for discharge under Criminal Rule 4(C); it is clear that more than a year had passed since Battering was charged by that point.  Before the trial court ruled on that motion, the Court of Appeals ruled in Battering’s favor on the interlocutory appeal.  The trial court then denied the discharge motion, which the Court of Appeals affirmed by a 2-1 vote.

The Supreme Court has granted transfer and ruled that Battering is entitled to a CR 4(C) discharge.  It held that a “plain reading” of Ind. Appellate Rule 14(H) governing interlocutory appeals means that “an interlocutory appeal only constitutes a stay if the trial court or the Court of Appeals so orders.”  The State bore the burden of prosecuting Battering within one year of charging and it “needed to request—and be granted—a stay of the proceedings in order to toll Rule 4(C)’s one-year limitation. Because it did not do so until it was too late, Battering is entitled to discharge.”  The Court also noted that a motion to stay “almost certainly would have been granted” and moving for a continuance in the trial court did not have the same effect as moving for a stay.

Defendant’s Statement to Police Was Not “Against Interest” and Was Inadmissible Hearsay

Webb v. State, No. 19A-CR-2424 (Ind. Ct. App. 7/9/20)

Jamie Webb and her mother used to work at a restaurant owned by Candace Coe, and previously jointly owned by Coe’s live-in boyfriend, Samuel Velasquez.  The restaurant became insolvent after Velasquez left the business and moved out-of-state, and Coe was unable to pay back wages of almost $4,000 to Webb and her mother.  A few days after the restaurant closed, Webb and her mother broke into Coe’s home and removed a number of items of the property while Coe was out of town.  Police obtained a search warrant for Webb’s home and found Coe’s property inside.  Webb told an investigating officer that she had permission from Velasquez to take Coe’s property to compensate her and her mother for the unpaid wages.  At trial, Webb declined to testify but did seek to introduce this statement to the officer as an admissible hearsay statement against interest.  The trial court refused to allow it, and Webb was convicted of F4 burglary and found to be an habitual offender and was sentenced to a total term of 20 years with 2 suspended.

The Court of Appeals affirmed.  First, it addressed the admissibility under Ind. Evidence Rule 804(b)(3) of Webb’s out-of-court statement that she had “permission” to take Coe’s property.  It noted that Coe’s invoking her 5^th Amendment privilege at trial and refusing to testify did, in fact, technically make her “unavailable” as required by Rule 804.  But, her claim of permission to take the property was not a “statement against interest.”  It was not incriminating on its face and in fact, was more exculpatory than inculpatory.  The Court agreed with the AG that Webb was trying to “have her cake and eat it too” by introducing an exculpatory statement while avoiding cross-examination about it.  Second, the Court found Webb’s sentence to be appropriate in light of her criminal history, and the fact that the burglary and theft of Coe’s property seemed more motivated by revenge than an actual desire or need for the money after the restaurant’s closure.

Plea Agreement Waiver Language Did Not Bar Defendant’s Appeal of Sentence

McHenry v. State, No. 19A-CR-2460 (Ind. Ct. App. 7/17/20)

Nicholas McHenry was charged with one count of F1 molesting and two counts of F4 molesting.  He pled guilty to the F4s and the F1 was dismissed.  The plea agreement did not put a cap on sentencing, but instead listed the minimum and maximum sentences for an F4.  The plea also contained the following waiver language:

The Defendant understands that he has a right to appeal his sentence if there is an open plea.  An open plea is an agreement which leaves the sentence entirely to the Judge’s discretion, without any limitation or the dismissal of any charges.  The Defendant’s plea is not an open plea, and the Defendant hereby waives his right to appeal his sentence so long as the Judge sentences the Defendant within the terms of the plea agreement.  The defendant hereby waives the right to appeal any sentence imposed by the Court, under any standard of review, including but not limited to, an abuse of discretion standard and the appropriateness of the sentence under Indiana Appellate Rule 7(B), so long as the Court sentences the defendant within the terms of the plea agreement.

After accepting the plea, the trial court imposed consecutive 12-year sentences for a total of 24 years.

The Court of Appeals declined to dismiss McHenry’s appeal challenging his sentence, finding that the purported waiver of appeal language did not apply.  It found that it mischaracterized McHenry’s plea as “not an open plea” when it actually left sentencing entirely to the trial court’s discretion, making it in fact “open.”  The waiver language indicated that it did not apply if a plea was “open,” as McHenry’s was.  (The waiver probably would have been effective, I think, if it had started in the middle of the third sentence, “[T]he Defendant hereby waives his right to appeal his sentence . . . .”)  However, the Court concluded that McHenry’s sentence was not inappropriate.  There was substantial evidence presented at the sentencing hearing of the significant harm the victims suffered, that McHenry was in a position of trust when he committed these crimes, and he had a past history of engaging in criminal sexual behavior.

Sufficient Evidence Defendants Failed to Return to “Lawful Detention”

Norton & Myers v. State, No. 19A-CR-2389 (Ind. Ct. App. 6/30/20)

Sufficient Circumstantial Evidence of Molesting Defendant’s Age

Brown v. State, No. 20A-CR-171 (Ind. Ct. App. 7/2/20)

Split Court of Appeals Affirms Legality of Warrantless In-Home Arrest

Shorter v. State, No. 19A-CR-2904 (Ind. Ct. App 7/6/20)

Giving False Alibi Supported Conviction for Assisting a Criminal

Jacobs v. State, No. 20A-CR-277 (Ind. Ct. App. 7/7/20)

Lesser-Included Instructions for Reckless Homicide, Involuntary Manslaughter Properly Rejected in Child Murder Case

Atkinson v. State, No. 19A-CR-2568 (Ind. Ct. App. 7/9/20)

Inventory Search Found to Be “Pretextual,” Evidence Suppressed

Combs v. State, No. 19A-CR-1991 (Ind. Ct. App. 7/9/20)

Defendant Was Subject to State Prosecution for Crime Committed on Tribal Property, Failed to Prove He Was Native American

Riggle v. State, No. 20A-CR-357 (Ind. Ct. App. 7/16/20)

Apparent Confusion Over Whether Jury Trial Was Requested Leads to Misdemeanor Bench Trial Reversal

Wiley v. State, No. 19A-CR-3062 (Ind. Ct. App. 7/16/20)

Murder Defendant’s Statements to Pastor Not Covered by Clergy-Parishioner Privilege

Elliott v. State, No. 19A-CR-2498 (Ind. Ct. App. 7/17/20)