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An Indiana Court of Appeals panel disagreed as to whether the failure of a defendant’s counsel to press for the statutory
requirement for a hearing on a sexually violent predator finding was a procedural default that waived the appellate court’s
consideration of the issue.
In Matthew A. Baugh v. State of Indiana, No. 18A04-0911-CR-621, the majority determined
Matthew Baugh waived his claim that the trial court failed to comply with the statutory requirements for making a sexually
violent predator determination. Chief Judge John Baker and Judge Terry Crone ruled the issue waived because Baugh failed to
object to the determination at sentencing.
Baugh was evaluated by two doctors, who determined he suffered from a personality disorder and was likely to re-offend. The
trial court reviewed the doctors’ reports and found Baugh was a sexually violent predator within the meaning of the
statute.
Judge Carr Darden dissented, writing, “Given the nature of the offenses constituting Baugh’s criminal history,
I believe that consequences as severe as the ‘violent sexual predator’ label and the lifetime registration requirement
should subject the doctors’ conclusions to the crucible of cross-examination.”
Judge Darden found the matter to be a fundamental error and questioned how a constitutionally competent attorney could allow
his client to suffer the consequences Baugh did without advising him of the statutorily required hearing. The judge wanted
the trial court to conduct a hearing with the doctors or inform Baugh of the statutory requirement for the hearing and get
an express waiver of the experts testifying at the hearing.
The appellate court affirmed Baugh’s consecutive sentences for two convictions of Class B felony sexual misconduct
with a minor. The judges also held his convictions don’t violate the Indiana Constitution’s prohibition of double
jeopardy.
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