Friday, December 16, 2016
Ind. Decisions - Supreme Court decides two today
In State of Indiana v. Frank Hancock, a 13-page, 4-1 opinion, Justice Rucker writes:
Concluding the burglary statute in this state is not substantially similar to the burglary statute of a sister jurisdiction, the trial court dismissed two counts of an information charging the defendant as a serious violent felon. Reaching the opposite conclusion, we reverse the trial court’s judgment. * * *In Kyle Bess v. State of Indiana, a brief 2-page, 5-0, per curiam opinion on a petition for rehearing, concluding:
The State then appealed the dismissal of the two SVF counts contending the trial court misinterpreted the law when it determined that Hancock’s prior conviction for residential burglary in Ohio was not substantially similar to the elements of residential burglary in Indiana. Affirming the trial court, the Court of Appeals declared “[a]lthough the statutes might seem substantially similar at first glance, when the same factual situation is applied to both statutes, two different legal outcomes are possible based on whether the incident occurred in Ohio or Indiana.” State v. Hancock, 49 N.E.3d 1084, 1086 (Ind. Ct. App. 2016). Having previously granted transfer, we now reverse the trial court’s judgment. * * *
A serious violent felon includes a person who has been convicted in another jurisdiction in which the elements of the crime for which the conviction was entered are substantially similar to the elements of a serious violent felony in this jurisdiction. We conclude the elements of Ohio’s second degree felony burglary statute are substantially similar to the corollary elements of Indiana’s level 4 felony burglary statute. The trial court thus erred in dismissing the informations charging Hancock as a serious violent felon. We therefore reverse the judgment of the trial court.
Rush, C.J., and Massa and Slaughter, JJ., concur.
David, J., dissents with separate opinion. [that appears at p. 13, concluding]
Because Indiana requires a higher showing to constitute a burglary; that is, a felony or theft, I do not believe that the two statutes are substantially similar. Accordingly, I believe we should affirm the trial court.
Bess is correct that the record reflects he solicited his niece to sit on his lap and she declined, not that he “had her sit on his lap.” See Tr. 48, 51. This factual difference does not alter our original decision. We grant rehearing to correct the facts as reflected herein. In all other respects the original opinion is affirmed.
Posted by Marcia Oddi on December 16, 2016 01:59 PM
Posted to Ind. Sup.Ct. Decisions