Double jeopardy found in gun convictions, but sentence affirmed

A felon convicted on two gun charges and sentenced to an upper-range prison term received token relief from the Indiana Court of Appeals on Thursday, but he still is ordered to serve more than 10 years behind bars.

After he ran a stop sign and was stopped by police in May 2018, McConney George was arrested when police smelled marijuana and a K-9 alerted to its presence in his vehicle. Police also found a gun that had been reported stolen.

George ultimately was convicted of Level 4 felony unlawful possession of a firearm by a serious violent felon, Class A misdemeanor carrying a handgun without a license and Class B misdemeanor possession of marijuana after a jury trial in Tippecanoe Superior Court. The jury acquitted him on a theft charge related to the stolen gun.

The trial court imposed a 10-year sentence on the felony charge and a consecutive 180-day sentence on the pot conviction. George also received a one-year concurrent sentence on the misdemeanor gun charge.

George appealed the gun convictions on double jeopardy grounds, and the state conceded the lesser charge should be vacated, which the COA did in McConney J. George v. State of Indiana, 18A-CR-2300.

However, the removal of the conviction will not change George’s sentence, nor did his argument to the appellate court that his sentence was inappropriate. George contended the trial court wrongly found his silence during the probation department’s preparation of his pre-sentencing investigation report to be an aggravator.

“Contrary to George’s argument, his refusal to cooperate with Probation does not appear to have had anything to do with his Fifth Amendment right to remain silent, because he provided most of the information directly to the court at sentencing,” Judge Melissa May wrote for the panel. “As a poor attitude is a valid aggravator, we cannot find the trial court abused its discretion.”

Nor did the trial court abuse its discretion in considering such aggravators as George’s prior four convictions of armed robbery and battery resulting in bodily injury and his 35 conduct violations while in the Department of Correction. Also unavailing on appeal was George’s argument that the sentence was inappropriate based on his character and the nature of the offense.

“George argues his possession of a firearm by serious violent felon offense is less egregious than the standard offense because the loaded gun was not used in the commission of a crime. George was out on parole for armed robbery and battery,” May wrote. “Indiana law prohibits felons from possessing firearms. The elements of the crime do not require use of the firearm in commission of a crime, and thus we reject George’s argument.”