Enhancement not allowed for attempted crimes

The Indiana Court of Appeals overturned a sentence enhancement for a man convicted of attempted rape. The enhancement was for being a repeat sexual offender, but attempted rape is not a crime listed under the repeat sex offender statute that allows for the enhancement.

In William E. Wright v. State of Indiana, No. 48A02-0708-PC-678, the Court of Appeals agreed with Wright that his appellate counsel provided ineffective assistance in regards to challenging the sentence enhancement and that Wright’s petition for post-conviction relief should have been granted.

Wright had been found guilty of attempted rape, criminal confinement, and battery resulting in injury. The state also filed additional information, alleging Wright was a repeat sexual offender. On the day he was convicted, Wright’s counsel got him to admit he was a repeat sexual offender.

Wright appealed his convictions, and the Court of Appeals had remanded to the trial court to correct the judgment because attempted rape and criminal confinement convictions had violated double jeopardy principles. The trial court sentenced Wright to 20 years for attempted rape and enhanced the sentence by eight years for being a repeat sexual offender. He was also sentenced to one year for battery causing injury.

Wright filed a petition for post-conviction relief, alleging ineffective trial and appellate counsel assistance because they failed to challenge his repeat sex offender enhancement. The post-conviction court denied his petition.

The Court of Appeals’ decision to reverse Wright’s repeat sexual offender enhancement hinged upon the word “attempted.” Wright was convicted of attempted rape, not rape. Wright argued his circumstance is similar to that in Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000), in which the Supreme Court ruled that if the legislature had intended for a list of crimes of violence to include other crimes, then the offense would have appeared in the statute. In Ellis’ case, he appealed his sentence under Indiana Code 35-50-1-2(a), the consecutive and concurrent terms statute, which did not list any attempted crimes under “crimes of violence.” Ellis had been convicted of attempted murder.

Just like the consecutive and concurrent terms statute, the repeat sex offender statute doesn’t list any specific reference to attempted crimes.

Judge Patricia Riley wrote that the Court of Appeals must apply the rule of lenity and conclude the crime of attempted rape isn’t included as an offense under the repeat sex offender statute. Thus, Wright’s trial counsel erroneously got Wright to admit to being a repeat sex offender and his appellate counsel provided deficient performance for failing to allege Wright’s trial counsel was ineffective for this reason or to argue the enhancement was a fundamental error.

The appeals court remands to trial court to adjust Wright’s sentence because if the trial counsel had effectively argued this point, his sentence would not have been enhanced.