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Thursday, July 28, 2011
Ind. Decisions - NFP opinion today looks at Constitution's proportionality clause
The NFP opinion today by the COA in the case of Marvin L. Ervin v. State of Indiana is worth a note -- as stated in footnote 1 of today's opinion:
[1] Our Supreme Court had previously remanded this case to us, following the issuance of an unpublished opinion in 2010. See Ervin v. State, No. 49A02-1002-CR-123 (Ind. Ct. App. Sep. 28, 2010). The second remand was ordered on July 7, 2011, following the issuance of an unpublished memorandum decision on April 13, 2011.Indeed, twice the Supreme Court granted transfer and sent the case back to the COA -- see the mention in a July 11th ILB entry. The Supreme Court's July 7, 2011 order granting transfer and remand states:
Ervin's petition accurately states that the Court of Appeals did not address an issue that he raised as issue II in his appellant's brief concerning whether "the D felony classification for theft violates the Proportionality Clause when the offense is 'one and the same' as criminal conversion, a Class A misdemeanor."Today's 14-page NFP opinion, by a new panel headed by Judge Baker, does not change the outcome but does specifically address the issue. Some quotes:
Upon remand from our Supreme Court, we have been instructed to more fully address an issue that appellant-defendant Marvin Ervin presented in his direct appeal that involves the Proportionality Clause of the Indiana Constitution. * * *[pp. 10-14 begins] III. Constitutionally Proportionate Penalty. In a related issue, Ervin maintains that his conviction must be set aside because the penalty for theft violates the Proportionality Clause set forth in Article I, Section 16 of the Indiana Constitution. Specifically, Ervin argues that the theft statute is unconstitutional and his conviction must be reduced to conversion because the offenses are proven by the same material elements. Therefore, Ervin asserts that the classification for theft as a class D felony violates the Proportionality Clause because that offense is “one and the same” as criminal conversion, a class A misdemeanor.
The Proportionality Clause, as set forth in Article I, Section 16, of the Indiana Constitution, requires that “[a]ll penalties shall be proportioned to the nature of the offense.”
Posted by Marcia Oddi on July 28, 2011 11:01 AM
Posted to Ind. App.Ct. Decisions