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Wednesday, April 03, 2013

Ind. Decisions - Rare written dissent filed in transfer vacated as improvidently granted

Oral argument was held March 7th before the Supreme Court in the case of Andrew J. Humphreys v. State of Indiana. Here is the summary posted before the argument:

Andrew J. Humphreys v. State of Indiana (79S04-1212-CR-670) - In the Tippecanoe Superior Court, Humphreys was convicted of conspiracy to manufacture methamphetamine, dealing in methamphetamine, and possession of substances with intent to manufacture methamphetamine. He was also found to be an habitual offender. Citing Owens v. State, 929 N.E.2d 754 (Ind. 2010), the Court of Appeals rejected Humphreys’s argument that IC 35-50-2-8(b)(3), which limits application of the general habitual offender rule when the instant offense is a “drug offense,” applied to him. The Court of Appeals addressed other arguments, and in a memorandum decision, affirmed the trial court in part and reversed in part. Humphreys v. State, No. 79A04-1112-CR-677, slip op. (Ind. Ct. App. Sept. 24, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.

ILB: This was a Sept. 24, 2012 NFP COA opinion

A one-page published order dated March 28, 2013 has now been posted:
By order dated December 10, 2012, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals not-for-publication memorandum decision, Andrew Humphreys v. State, No. 79A04-1112-CR-677 (Ind. Ct. App. Sept. 24, 2012), should be reinstated as a memorandum decision. See Appellate Rule 65(D). Accordingly, the order granting transfer is VACATED, and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.
But the vote was 3-2, with Dickson, C.J., and David and Massa, JJ., concurring, and with Rush and Rucker, JJ., dissenting.

Furthermore, "Rush, J. dissents with separate opinion in which Rucker, J., concurs." The three-page dissent begins:

I respectfully dissent from vacating the grant of transfer. The Court of Appeals held that even though Defendant’s sentence for actually dealing methamphetamine may not be enhanced under our habitual offender statute, his sentence for conspiracy to deal may be. It based that conclusion on Owens v. State, 929 N.E.2d 754 (Ind. 2010), when Owens actually compels the opposite conclusion — not just because penal statutes must be strictly construed against the State, but as a matter of legislative intent. I would therefore reverse Defendant’s sentence enhancement.
The dissent concludes:
In sum, I would find that enhancing a sentence for conspiracy to commit an offense that could not itself be enhanced contravenes well settled principles of strict construction, misapplies Owens, and is contrary to legislative intent. Rather than permitting that result to stand, the Court should retain jurisdiction on transfer and reverse Defendant’s habitual offender enhancement.
ILB: In the ILB entry Monday on the transfer list for the week ending March 28, 2013, I commented: "Note that the vote on cases denied transfer is becoming more interesting with the new court makeup."

I was alluding to the fact that in 8 of the cases denied transfer, J. Massa was the lone vote objecting to denial of transfer in one case, J. Rucker in one, Justice David in one, and Justice Rush in four. In the eighth case, both J. Rush and J. David objected to the denial.

The totals: 24 cases were considered at the March 28th conference. Three were granted transfer. Thirteen were denied transfer, and in eight of those, denial of transfer was contested by at least one justice.

Posted by Marcia Oddi on April 3, 2013 04:19 PM
Posted to Ind. Sup.Ct. Decisions