Indiana Court Decisions: Oct. 5-18, 2023

7th Circuit Court of Appeals

Published Oct. 4, posted to theindianalawyer.com Oct. 5

Ryan T. McMullen v. Gary Dalton and Melissa Stephenson

20-3273

7th Circuit vacates denial of habeas petition, orders evidentiary hearing

Overturning the district court and disagreeing with a state appellate court’s analysis, the 7th Circuit Court of Appeals has vacated the denial of habeas relief to a man convicted on drug charges, ordering an evidentiary hearing on his habeas petition.

Following a jury trial in Grant Circuit Court, petitioner-appellant Ryan McMullen was convicted of possession of cocaine and marijuana and received a 50-year prison sentence.

McMullen’s sentence was upheld on direct appeal, and the Indiana Supreme Court denied transfer.

He then sought post-conviction relief, arguing his attorney, Joe Keith Lewis, was ineffective for failing to “conduct a reasonable investigation of McMullen’s character, background, and mental status, arrange for him to be evaluated by a mental health professional, and present evidence of mitigating circumstances at the sentencing hearing.”

But the state trial court concluded Lewis had not been ineffective, and the Court of Appeals of Indiana affirmed, with the Supreme Court again denying transfer.

McMullen then sought federal habeas relief under 28 U.S.C. § 2254, which was denied by the U.S. District Court for the Southern District of Indiana. The court found Lewis had performed deficiently, but his performance was not prejudicial.

Meanwhile in state court, on McMullen’s renewed motion to modify his sentence, the trial court “suspended” the remainder of his sentence and placed him on probation until Sept. 28, 2049.

Addressing McMullen’s appeal of the denial of his habeas petition, the 7th Circuit first rejected the argument that the appeal was moot based on the modified sentence.

“Because no separate judgment of conviction was entered after modification, no new penalty was imposed against McMullen. Instead, his sentence was suspended. He is therefore serving the remainder of the initially imposed sentence, but on probation,” Judge Michael Brennan wrote.

Turning to the merits, the appellate court next determined McMullen had satisfied § 2254(d) on his claim of ineffective assistance of counsel, thus vacating the denial of his habeas petition.

First finding that Antiterrorism and Effective Death Penalty Act deference applies on the performance prong of Strickland v. Washington, 466 U.S. 668 (1984), the appellate court then found Lewis was deficient for failing to investigate McMullen’s mental health or have him evaluated, failing to conduct a reasonable investigation into his background, and failing to present sufficient mitigating evidence at sentencing.

As for the mental health issue, “… (T)he Indiana Court of Appeals failed to analyze whether reasonable professional judgment supported Lewis’s limited investigation into McMullen’s mental health,” Brennan wrote.

As for the background investigation, “Given that the state was asking for the statutory maximum prison term, Lewis’s investigation should have gone beyond just review and use of the (presentence report), and discussion of McMullen with a knowledgeable relative.”

Finally, as to the presentation of mitigating circumstances, “which mitigating circumstances Lewis could present was a function of the scope of his investigation before sentencing.”

“To be fair to Lewis, at times his advocacy greatly helped McMullen,” Brennan wrote. “… But under the reasoning above, we agree with the district court that McMullen has established Lewis’s deficient performance.”

As for prejudice, “The state appellate court failed to evaluate the totality of the available mitigation evidence, which is significant and compelling,” Brennan continued.

“McMullen received a maximum sentence, based in large part on his poor criminal history. The undiscovered mitigating evidence could have influenced the state trial court’s sentencing decision. The likelihood of a different result is sufficient to undermine confidence in the outcome of the sentencing hearing,” he wrote.

“… We remand for the district court to consider evidence and argument as to whether Lewis had any strategic reasons for the limits of his investigation into McMullen’s mental health and background and the presentation of mitigating circumstances. The district court can then decide whether or not Lewis was constitutionally ineffective such that McMullen’s petition for habeas corpus should be granted under § 2254(a),” the court concluded.

The case is Ryan T. McMullen v. Gary Dalton and Melissa Stephenson, 20-3273.

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Oct. 16

United States of America v. Elvis C. Medrano

22-3219

Texts introduced as evidence in drug conspiracy case were harmless, 7th Circuit rules

The admission of a screenshot of a defendant’s texts with a contact during his trial on a drug-related conspiracy charge was harmless and only one piece of an “overwhelming” amount of evidence supporting his conviction, the 7th Circuit Court of Appeals ruled in affirming his conviction.

According to court records, from March 2020 until his arrest in August 2020, Elvis Medrano engaged in a conspiracy to distribute mixtures and substances containing detectable amounts of methamphetamine, cocaine and MDMA. A drug supplier shipped drugs from California to Indiana, where Medrano and others used the United States Post Office and a post office employee to distribute the drugs.

During this time, Medrano was a fugitive. Officers tracked and attempted to arrest him on several occasions.

On June 1, 2020, officers found Medrano at a motel in Indiana. When officers attempted to arrest him, he fled and led officers on a high-speed chase.

Medrano evaded arrest, but officers found his truck and took a co-conspirator, Nikki Foster, into custody. They later obtained a warrant to search Medrano’s motel room.

There officers found his burner phone, as well as drug paraphernalia including scales, baggies and substances used to dilute meth. They also recovered the key to a post office box, which officers later determined Medrano had received from Christina Johnson, a post office employee.

Around July 2020, officers tracked Medrano to another motel in Indiana. Once again, Medrano led officers on a high-speed chase and avoided arrest.

Officers executed a search warrant for Medrano’s motel room and again found drug paraphernalia. They also located another phone belonging to Medrano.

Officers finally arrested Medrano at a residence in Indiana. There they discovered meth and drug paraphernalia.

They also found a third phone belonging to Medrano. That phone contained text messages between Medrano and a contact identified as “Rob Marshalltown.”

A grand jury returned a superseding indictment charging Medrano with conspiracy to possess with intent to distribute and to distribute controlled substances.

At the ensuing trial, the government introduced several exhibits. Medrano objected to the admission of several of those exhibits, including a text message conversation with Marshalltown.

Medrano argued the text message conversation was hearsay, but the Indiana Southern District Court overruled his objection, concluding the exhibit was admissible.

The jury then found Medrano guilty on the drug-related charge, as well as a charge of being a felon in possession of ammunition.

The district court sentenced him to 30 years in prison.

Medrano appealed, objecting to the district court’s admission of the text messages between him and Marshalltown as non-hearsay statements of a co-conspirator under Federal Rule of Evidence 801(d)(2)(E). He argued that the statements were hearsay and represented only a buyer-seller relationship, not a co-conspirator relationship.

The 7th Circuit affirmed the district court’s judgment, with Judge Michael Brennan writing for the appellate court.

According to Brennan, while abundant evidence supported the finding that Medrano participated in a larger conspiracy, the government did not provide independent evidence that Medrano conspired with Marshalltown or that Marshalltown otherwise participated in the larger conspiracy.

“The district court stated it ‘studied’ Exhibit 218(B) (the texts) and ‘in the context of th[at] specific exhibit, and with all of the other facts and circumstances of the evidence that has been admitted,’ it found that ‘the factors articulated for co-conspirator statements are satisfied,’” Brennan wrote.

That raised the question of whether a district court can rely solely on hearsay statements and evidence of the larger conspiracy involving the defendant, but not the declarant, to find that a conspiracy between the defendant and declarant existed.

The 7th Circuit ultimately determined it did not need to resolve the independent-evidence question because any error in admitting Exhibit 218(B) was nonconstitutional harmless error.

“Though Medrano argued at trial and argues on appeal that the admission of the exhibit violated the Confrontation Clause — and thus, the admission was a constitutional error — the text messages in that exhibit are nontestimonial, and thus do not implicate the Constitution,” Brennan wrote, citing Crawford v. Washington, 541 U.S. 36 (2004). “… A nonconstitutional error committed at trial that is unlikely to have altered the outcome of the trial is harmless.

“… The disputed exhibit was one small piece of the substantial physical, electronic, and testimonial evidence supporting a conviction against Medrano on the drug count,” the appellate court concluded. “Even assuming the district court erred in admitting the exhibit, any error was harmless.”

Judges Amy St. Eve and Candace Jackson-Akiwumi concurred in United States of America v. Elvis C. Medrano, 22-3219.

Indiana Supreme Court

Oct. 6

T.D. v. State of Indiana

23S-JV-110

IN Supreme Court orders new hearing after finding trial court didn’t comply with Juvenile Waiver Statute

A trial court failed to comply with the Juvenile Waiver Statute before accepting a teenager’s admission to auto theft, the Indiana Supreme Court has ruled in a reversal.

According to court records, T.D. was detained in June 2020 in the Lake County Juvenile Detention Center after he stole a vehicle and money. He was 15 at the time.

The state filed a delinquency petition, alleging T.D. committed auto theft and theft.

T.D.’s appointed counsel filed a motion on the same day seeking T.D.’s release from detention, stating he viewed the video on his rights and had no questions about his rights.

The Lake Superior Court denied the motion.

At an initial hearing, T.D. denied all allegations.

T.D. and his mother were both at the next hearing, where T.D.’s counsel informed the trial court that the parties had reached an agreement by which T.D. would admit to the auto theft charge and the state would dismiss the theft charge.

The court, without informing T.D. of his constitutional rights or confirming that he waived those rights, asked T.D. and his mother whether they agreed with the resolution.

After his mother agreed, T.D. admitted to committing auto theft, prompting the court to grant the delinquency petition on that count. The court then dismissed the theft count, the parties proceeded to argue disposition and the court took T.D.’s placement under advisement.

In an order issued later that day, the trial court accepted T.D.’s admission and found that he and his mother understood the admission “waives those rights explained in the video.”

The court issued a dispositional order placing T.D. under the wardship of the Department of Correction.

More than a year later, T.D. filed a motion for relief from judgment under Trial Rules 60(B)(6) and 60(B)(8), asserting the adjudication should be set aside because his admission was not knowing, intelligent or voluntary.

T.D. argued he and his mother were not “informed of a single right on the record.”

The state argued T.D. and his mother were previously advised of and understood T.D.’s rights and also asserted that the waiver was valid because it was the court’s practice “that each child, including those detained, views an advisement of rights video before they are brought into the courtroom for a hearing.”

The trial court denied the motion for relief from judgment.

On appeal, a split Court of Appeals of Indiana reversed in October 2022, finding the court’s judgment void under Trial Rule 60(B)(6). The majority reasoned that “a trial court’s failure to follow the juvenile waiver statute is not a procedural error.”

Because the COA found T.D. is entitled to relief under Trial Rule 60(B)(6), it did not address Trial Rule 60(B)(8).

T.D. petitioned for transfer, and the Supreme Court granted transfer in April.

The Supreme Court opinion notes that the rights conferred on children through state or federal law can be waived in only three ways: by counsel if the juvenile knowingly and voluntarily joins the waiver; by the juvenile’s custodial parent, guardian, custodian or guardian ad litem if that individual knowingly and voluntarily waives the rights, along with other conditions; or by the juvenile if they are emancipated and knowingly and voluntarily consent to the waiver.

Trial Rule 60(B)(6) permits relief when a court’s judgment is void, the opinion says, while Trial Rule 60(B)(8) permits relief for “any reason” other than those set forth in other subsections that aren’t relevant to the case.

T.D. and the state didn’t dispute that the trial court erred by failing to comply with the Juvenile Waiver Statute, but they disagreed on the effect of that error.

The high court first ruled T.D. isn’t entitled to relief under Rule 60(B)(6) because a violation of the Juvenile Waiver Statute renders a judgment entering an agreed delinquency adjudication voidable rather than void.

The state argued that because the trial court had both personal and subject-matter jurisdiction, T.D.’s agreed delinquency adjudication “cannot be considered void.”

T.D. conceded that the court had both personal and subject-matter jurisdiction, but he argued the judgment is void because the court lacked authority to find him delinquent without first securing a valid waiver of his rights.

The Supreme Court partially agreed with both parties, finding a judgment is void when the issuing court lacks personal jurisdiction, subject-matter jurisdiction or the authority to render the judgment.

“But a court’s failure to comply with the Juvenile Waiver Statute falls outside of that scope because, despite the statutory violation, the court still has the authority to adjudicate the juvenile as a delinquent,” the opinion states.

The opinion continued: “There is a distinct difference between a judgment that the law does not authorize under any circumstances (a void judgment), and a judgment authorized by law but derived in violation of law (a voidable judgment). In the latter scenario, the trial court still has the requisite authority to act, and thus, the error is a procedural irregularity that can be cured.”

The Supreme Court ruled a failure to comply with the statute renders an agreed delinquency adjudication voidable.

“Given the special caution afforded to juvenile admissions, a trial court’s failure to comply with the Juvenile Waiver Statute is particularly alarming,” the opinion says. “But that failure does not mean the court lacks the legal authority under any set of circumstances to adjudicate a juvenile as a delinquent.”

As a result, the Supreme Court ruled Trial Rule 60(B)(8) is the “proper vehicle for juveniles to collaterally attack an adjudication based on an invalid waiver of rights.”

The Supreme Court then ruled T.D. is entitled to relief under Trial Rule 60(B)(8).

“In fact,” the opinion states, “the record is devoid of evidence that the court mentioned any of T.D.’s rights during any hearing, including the initial hearing at which Indiana law requires the court to ‘inform the child’ of certain rights.”

The state argued the waiver was nevertheless valid under the Juvenile Waiver Statute because T.D. and his mother watched a video advisement before each hearing that explained his rights.

But the high court disagreed, ruling video advisements alone are insufficient to comply with the statute.

The case was remanded to the trial court with instructions to “hold a hearing during which T.D. either admits to the allegations raised in the delinquency petition after the court complies with the Juvenile Waiver Statute or proceeds to fact-finding.”

Indiana Chief Justice Loretta Rush wrote the opinion, with all justices concurring.

The case is T.D. v. State of Indiana, 23S-JV-110.

Court of Appeals of Indiana

Oct. 5

Harry Gillespie Nicholson, IV v. State of Indiana

23A-CR-890

Maximum sentence appropriate for ‘worst of the worst’ stepfather convicted of sexual misconduct, COA affirms

A man’s 14-year history of molesting his stepdaughter and the mental health issues she suffered from the repeated abuse justified a trial court’s imposition of a maximum 12-year prison sentence for sexual misconduct, the Court of Appeals of Indiana affirmed.

According to court records, A.H. and her mother began living with Henry Nicholson IV in Illinois in 2007, when A.H. was 4 years old.

Nicholson eventually became A.H.’s stepfather, and the family lived in various locations in Illinois before moving to Indiana in July 2018, when A.H. was 15 years old.

On March 18, 2021, A.H. disclosed to administrators at her high school that Nicholson had been sexually abusing her for the last 14 years. According to A.H., the abuse had occurred more times than she could count.

Before that day, the mother was unaware of the abuse.

On March 26, 2021, the state charged Nicholson with Level 3 felony rape, Level 4 felony sexual misconduct with a minor, Level 5 felony child seduction, Level 5 felony sexual misconduct with a minor, Level 6 felony child seduction and Level 6 felony sexual battery.

The parties entered into a plea agreement in February 2023, by which Nicholson pleaded guilty to Level 4 felony sexual misconduct with a minor, and the other counts were dismissed.

The plea agreement left sentencing to the discretion of the trial court.

At the sentencing hearing, A.H. gave a victim impact statement explaining, in part: “I can’t offer a clear before and after, only the trauma that’s been inflicted. The abuse that has occurred was almost my whole life up until the Defendant’s incarceration.” Because of the years of abuse, which she described as “violent experiences,” A.H. noted that she has been diagnosed with PTSD, depression and anxiety.

Her mother also gave a statement at sentencing, expressing fear that Nicholson would violate an order of protection based on past threats.

The Lake Superior Court found aggravating circumstances including, among others: Nicholson was in a position of trust as A.H.’s stepfather; he had been a law enforcement officer yet violated the law many times; he molested A.H. more than 1,500 times, grooming her for 14 years and breaking her spirit; the emotional and mental trauma caused by Nicholson scarred A.H. for life; and the harm suffered by A.H. was significant and greater than the elements necessary to prove the offense.

The trial court thus found that despite Nicholson’s lack of prior convictions, he was “the worst of the worst.” It then sentenced him to 12 years in the Indiana Department of Correction.

Nicholson appealed, challenging the appropriateness of the trial court’s imposition of the maximum sentence.

The Court of Appeals affirmed, finding Nicholson had failed to establish that the maximum sentence imposed by the trial court was inappropriate given the nature of the offense and his character.

Chief Judge Robert Altice wrote the opinion for the appellate court.

On appeal, Nicholson directed the Court of Appeals to the Indiana Supreme Court’s observation in Buchanan v. State, 767 N.E.d2d 967 (Ind. 2002), that maximum sentences are “generally most appropriate for the worst offenders,” which Nicholson claims he is not.

The nature, extent and depravity of Nicholson’s sexual abuse of A.H. warranted imposing the maximum sentence, Altice wrote.

“A.H. endured a life of abuse for nearly her entire childhood at the hands of her own stepfather. As a result, she suffers from PTSD, depression, and anxiety and will likely struggle with mental and emotional issues for years to come, if not forever. Mother’s life has also been altered tremendously,” Altice wrote.

On the issue of character, Nicholson said that he had no prior criminal convictions and that the only other charge filed against him was for violating a protective order in 2008.

Nicholson also observed that at the time of his instant arrest, he was employed full-time earning a six-figure income, had successfully raised two sons and was honorably discharged by the United States Marine Corps in 1997.

“Despite this, we find most telling of Nicholson’s character that he did not lead a law-abiding life throughout the 14 years that he was actively and repeatedly abusing A.H., his own stepdaughter, from the tender age of four into early adulthood,” Altice wrote.

Judges Melissa May and Peter Foley concurred.

The case is Harry Gillespie Nicholson, IV v. State of Indiana, 23A-CR-890.

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William H. Denney v. State of Indiana

23A-CR-523

Appellate court reverses resisting conviction, finding ‘pulling away’ wasn’t ‘forcible resistance’

A man arrested for acting disruptively in a casino has secured the reversal of his resisting law enforcement conviction, but the Court of Appeals of Indiana upheld his remaining convictions.

In 2019, security guards and Indiana Gaming Commission agents at Belterra Casino Resort received an alert that William Denney was being disruptive and threatening others in the lobby bar.

When they arrived, they heard Denney arguing with another patron and causing a disturbance. Security supervisor Paul Hammond noticed Denney was showing signs of intoxication, so he attempted to persuade him to go to a room in the casino hotel to sleep it off, but Denney wasn’t cooperating.

As the situation escalated, food and beverage vendors requested that security remove Denney from the bar. He walked out of the bar yelling profanities, and the security guards and IGC agents followed him out to the casino pavilion.

Denney was upset and making noise in the pavilion, so the security guards again tried to get him to go to a hotel room. Denney said he would leave the casino and walked away toward the parking garage, yelling expletives and causing a scene.

The security guards and IGC agents were concerned Denney would drive in his intoxicated state, so they followed him to the garage at a distance because he was being belligerent and threatening them.

Security discovered Denney sitting down and hiding between two cars.

Hammond continued to try to persuade Denney to go to a room, but Denney yelled at Hammond, threatening him. IGC Agent Brian Pennock intervened and offered to escort Denney to a room, but he refused.

Pennock warned Denney to calm down, but Denney stood and directed more expletives at Pennock.

Pennock then arrested Denney for public intoxication. As he reached for him, Denney lifted his arms up and “pulled away.”

IGC agent Steve Faulkner then intervened to assist Pennock, and they managed to get ahold of Denney. The agents handcuffed Denney and walked him to the IGC office.

Denney was uncooperative in the office and threatened the agents and their families, saying he knew motorcycle gang members who could go after their families. Pennock called the Switzerland County Sheriff’s Department, who picked Denney up and transported him to the county jail.

The state charged Denney with Level 6 felony intimidation, Class A misdemeanor resisting law enforcement, Class B misdemeanor disorderly conduct and Class B misdemeanor public intoxication.

At his bench trial, Denney claimed he was not being derogatory in the casino bar and didn’t say anything to other patrons. He also claimed someone had slipped something into his drink in an attempt to rob him.

Further, Denney claimed that he went to the parking garage to wait for his mom and sister to pick him up, and that in the IGC agents’ office, they were mocking him for having long hair like a gang member, which he played into.

The Switzerland Circuit Court found him guilty on all counts and sentenced him to an aggregate of 18 months, suspending all but 120 days that Denney was to serve on home detention.

Denney then appealed his convictions, arguing the state failed to present sufficient evidence. The appellate court disagreed except as to the resisting conviction.

“Denney contends his acts of ‘turn[ing] to leave,’ ‘pull[ing] away’ when Agent Pennock ‘tried to grab Denney’s arm and missed,’ and ‘tighten[ing] up’ when the agents had him on the ground did not constitute forcible resistance, Judge Nancy Vaidik wrote. “We agree.”

Judges Paul Mathias and Rudolph Pyle concurred.

The case is William H. Denney v. State of Indiana, 23A-CR-523.

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Oct. 11

Richard Pigott v. State of Indiana

22A-CR-2999

No proof man intended to deal meth, split COA rules in reversal

There was no evidence that a man intended to sell the methamphetamine found in his possession during a traffic stop, a split Court of Appeals of Indiana ruled in reversing a dealing conviction.

According to court records, on Dec. 4, 2021, several police officers were at a truck stop in Huntington when they saw the driver and front passenger of an SUV “acting very suspicious,” both “trying to keep an eye on [the officers], but also at the same time hide their face[s].”

One officer recognized the passenger, believed he had an arrest warrant and called dispatch to confirm. Before dispatch could do so, the SUV sped out of the parking lot.

After confirming the warrant, officers caught up to the SUV and pulled it over. They ordered the passenger to exit, and as he did, the officers smelled raw marijuana coming from the SUV.

The officers ordered the driver to exit the SUV and learned he also had a warrant.

Officers then saw Richard Pigott in the back seat “kind of crouching down, hiding his face, and talking on the phone.” There was a backpack on the seat next to Pigott, and Pigott said it belonged to him.

Officers ordered Pigott to exit and then searched the SUV and Pigott’s backpack. Inside the backpack was a digital scale lined with meth residue, more than $2,600 in cash, spoons, a jar of marijuana and Pigott’s wallet.

Pigott told police that the marijuana and cash belonged to him but claimed the scale “shouldn’t be in there” and was not his.

Police also seized and searched Pigott’s phone, and they found Facebook Messenger conversations indicating that Pigott had been selling meth and heroin to various people over the last two days.

The state charged Pigott with Level 5 felony dealing in meth, Level 6 felony possession of meth and Class B misdemeanor possession of marijuana.

A forensic scientist who testified at Pigott’s trial said he had scraped some of the meth residue off the digital scale for testing and determined its weight was too small to be measured, meaning it was less than 0.01 gram.

The jury found Pigott guilty as charged.

The Huntington Superior Court merged the possession count into the dealing count to avoid double jeopardy and entered judgment of conviction on the dealing and marijuana counts. The court imposed concurrent sentences of four years for dealing in methamphetamine and 60 days for possession of marijuana.

Pigott appealed, arguing there was insufficient evidence that he possessed the meth or intended to deliver it.

Partially agreeing, the Court of Appeals reversed Pigott’s dealing conviction and remanded to the trial court with instructions to enter judgment of conviction for Level 6 felony possession of meth and to resentence Pigott accordingly.

Judge Nancy Vaidik wrote the opinion for the appellate court.

According to Vaidik, the appellate court disagreed with Pigott’s argument that he was not in constructive possession of the meth.

“Here, the methamphetamine was in the backpack right next to Pigott, and the backpack contained several other items belonging to Pigott, including his wallet. Also, Pigott acted nervous when asked about the scale and the residue,” Vaidik wrote.

However, Vaidik noted that the state didn’t direct the appellate court to any evidence that Pigott intended to sell, or tried to sell, “the minuscule amount of methamphetamine found on the scale.”

There was also no evidence that Pigott was in the business of selling drug residue or that he was going to try to sell this specific residue, Vaidik continued, and the state’s own evidence showed there is no market for meth residue.

“The issue is whether the State proved that Pigott intended to deal the methamphetamine residue found on the digital scale,” she wrote. “Not only did the State fail to prove that, but its own evidence supported the opposite conclusion.”

Judge Elizabeth Tavitas concurred.

Judge Peter Foley dissented in a separate opinion.

“Inherent in the majority’s holding is that the possession with intent to deliver statute requires a defendant to intend to deliver a minimal amount of methamphetamine and the specific methamphetamine found in the defendant’s possession,” Foley wrote. “I view the majority’s holding to add language to the statute that does not exist.”

According to Foley, because Indiana Code § 35-48-4-1.1(a)(2) does not contain language requiring a minimum amount of meth, the plain language of the statute required the state to prove that a defendant possess some quantity of meth with the intent to deliver.

“I conclude that the State presented sufficient evidence to support Pigott’s conviction for dealing in methamphetamine and would affirm his conviction,” Foley wrote.

The case is Richard Pigott v. State of Indiana, 22A-CR-2999.

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Oct. 17

Russell G. Finnegan v. State of Indiana

23A-MI-442

Criminal contempt defendants entitled to appointment of mental health experts, COA rules

Defendants facing criminal contempt are entitled to the same statutory protections as other criminal defendants, including the right to the appointment of mental health experts, the Court of Appeals of Indiana ruled in a reversal.

In June 2021, appellant-defendant Russell Finnegan was charged with indirect criminal contempt of court and was ordered to show cause as to why he shouldn’t be held in contempt. The Pulaski Circuit Court’s show-cause order said Finnegan, proceeding pro se, had “filed a document … that is obnoxious, profane, and attempts to undermine the Court’s authority, justice, independence, and dignity.”

Following a hearing, Special Judge John Potter found Finnegan in indirect criminal contempt. The court then began to receive “vulgar, misogynistic, inappropriate and harassing correspondence” from Finnegan.

In October 2021, Potter ordered Finnegan to show cause as to why he should not again be held in indirect criminal contempt of court.

During a hearing in January 2023 with Special Judge David Chidester presiding, Finnegan’s counsel alerted the trial court that there were mental health issues and that they were in the process of having a mental health evaluation completed in an unrelated criminal case that was also pending in the court.

A few weeks later, Finnegan filed notice of intent to raise the defense of mental disease or defect and requested that the trial court appoint medical personnel to evaluate his mental health and testify at the contempt hearing. His counsel also filed a motion for continuance to allow for more time for the results of the evaluation.

Chidester denied the motion for continuance and never ruled on the notice.

Following the final contempt hearing, Chidester issued an order finding Finnegan in indirect criminal contempt. The trial court imposed a sanction of almost six months in the Department of Correction.

Finnegan then appealed, arguing the trial court abused its discretion in failing to appoint medical personnel to evaluate his mental health and testify at his criminal contempt hearing.

The appellate court agreed.

According to the COA, Chidester had remarked that he didn’t believe Finnegan was mentally ill based on prior observations and interactions. And for its part, the state said Finnegan “was simply ‘not entitled’ to file that notice and obtain the statutory mental health evaluations because a contempt proceeding is not a ‘trial of a criminal case’ as contemplated by Indiana Code Section 35-36-2-2.”

But determining a criminal contempt proceeding is, in fact, a “trial of a criminal case” under I.C. 35-36-2-2, the COA held, “Accordingly, defendants like Finnegan, who are held to answer for criminal contempt and face the same array of punishments as do other criminal defendants, are entitled to the same statutory protections afforded other criminal defendants, including the right to file a notice of insanity defense and obtain the appointment of appropriate experts to testify at the contempt proceedings.”

The court rejected the state’s alternative assertion that any such error was harmless. The state also suggested Chidester did not need assistance from experts because he was able to and did determine Finnegan did not suffer from a mental disease or defect.

“Be that as it may, Finnegan should have had the opportunity to obtain and offer the requested expert evaluations, and it would have then been the trial court’s prerogative to disregard that testimony if it was unpersuasive or inconsistent with other probative evidence,” Judge Terry Crone wrote. “Under the circumstances presented, we simply cannot say with confidence that the absence of expert opinion testimony had no bearing on the outcome of this case.”

Judges Patricia Riley and Paul Mathias concurred in the case of Russell G. Finnegan v. State of Indiana, 23A-MI-442, which was remanded for further proceedings.•