Reece v. State

181 N.E.3d 1006

Courtney L. REECE, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 21A-CR-864

Court of Appeals of Indiana.

FILED December 22, 2021

Attorney for Appellant: Denise L. Turner, DTurner Legal LLC, Indianapolis, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Tyler Banks, Supervising Deputy Attorney General, Indianapolis, Indiana

Brown, Judge.

[1] Courtney L. Reece appeals the denial of his motion to dismiss the charge of unlawful possession of a firearm by a serious violent felon. He raises two issues which we consolidate and restate as whether Ind. Code § 35-47-4-5, as applied to him, is unconstitutional. We affirm.

Facts and Procedural History

[2] On August 10, 2005, Reece was convicted of conspiracy to commit burglary as a class B felony. On January 4, 2021, the State charged Reece with Count I, unlawful possession of a firearm by a serious violent felon as a level 4 felony, and Count II, possession of marijuana as a class B misdemeanor. With respect to Count I, the State alleged that "[o]n or about January 2, 2021, Courtney Reece having previously been convicted of a serious violent felony, to-wit: Conspiracy to Commit Burglary, a Class B Felony, in Marion Superior Court Criminal Division Two under cause number 49G02-0505-FB-075604, did knowingly possess a firearm, to-wit: a handgun." Appellant's Appendix Volume II at 17.

[3] On April 16, 2021, Reece filed a motion to dismiss and argued that Count I was defective pursuant to Ind. Code § 35-34-1-4(a)(1) because Ind. Code § 35-47-4-5 was void for vagueness as it "fails to provide adequate notice that Indiana attempts and conspiracies ... can serve as predicate serious violent felonies" and must be dismissed under Ind. Code § 35-34-1-4(a)(5).¹ Id. at 26. On April 28, 2021, the court held a hearing and denied Reece's motion to dismiss.

Discussion

[4] The issue is whether Ind. Code § 35-47-4-5, as applied to Reece, is unconstitutional. Before addressing the parties’ arguments, we take note of the relevant statutes. At the time Reece was convicted of conspiracy to commit burglary as a class B felony in 2005, Ind. Code § 35-47-4-5 provided that "[a] serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon, a Class B felony," that " ‘serious violent felon’ means a person who has been convicted of ... (1) committing a serious violent felony ... or (2) attempting to commit or conspiring to commit a serious violent felony," and that "serious violent felony" included "burglary as a Class A felony or Class B felony." (Emphasis added).²

[5] In 2020, the legislature adopted Pub. L. No. 142-2020, which became effective July 1, 2020. Pub. L. No. 142-2020, § 2, added Ind. Code § 1-1-2-4, which provides:

(a) As used in this section, "reference to a conviction for an Indiana criminal offense" means both a specific reference to a conviction for a criminal offense in Indiana (with or without an Indiana Code citation reference) and a general reference to a conviction for a class or type of criminal offense, such as:

(1) a felony;

(2) a misdemeanor;

(3) a sex offense;

(4) a violent crime;

(5) a crime of domestic violence;

(6) a crime of dishonesty;

(7) fraud;

(8) a crime resulting in a specified injury or committed against a specified victim; or

(9) a crime under IC 35-42 or IC 9-30-5 or under any other statute describing one (1) or more criminal offenses.

(b) Except as provided in subsection (c), a reference to a conviction for an Indiana criminal offense appearing within the Indiana Code also includes a conviction for any of the following :

(1) An attempt to commit the offense, unless the offense is murder ( IC 35-42-1-1 ).

(2) A conspiracy to commit the offense.

(3) A substantially similar offense committed in another jurisdiction, including an attempt or conspiracy to commit the offense, even if the reference to the conviction for the Indiana criminal offense specifically refers to an "Indiana conviction" or a conviction "in Indiana" or under "Indiana law" or "laws of this state".

(c) A reference to a conviction for an Indiana criminal offense appearing within the Indiana Code does not include an offense described in subsection (b)(1) through (b)(3) if:

(1) the reference expressly excludes an offense described in subsection (b)(1) through (b)(3); or

(2) with respect to an offense described in subsection (b)(3), the reference imposes an additional qualifier on the offense committed in another jurisdiction.

(d) If there is a conflict between a provision in this section and another provision of the Indiana Code, this section controls.

(Emphases added).

[6] Pub. L. No. 142-2020, § 74, amended Ind. Code § 35-47-4-5 and deleted the reference to "attempting to commit or conspiring to commit a serious violent felony" such that Ind. Code § 35-47-4-5 now provides, and provided at the time that Reece allegedly possessed a firearm on January 2, 2001, that " ‘serious violent felon’ means a person who has been convicted of committing a serious violent felony," and " ‘serious violent felony’ means ... burglary ( IC 35-43-2-1 ) as a ... Class A felony or Class B felony, for a crime committed before July 1, 2014 ...."

[7] Reece argues that, just as the statute in Healthscript, Inc. v. State , 770 N.E.2d 810 (Ind. 2002), failed to give individuals fair warning and lacked the sufficient definiteness due process requires, Ind. Code § 35-47-4-5 is similarly deficient. He also asserts that the charging information contained no reference to Ind. Code § 1-1-2-4(b). The State cites Tiplick v. State , 43 N.E.3d 1259 (Ind. 2015). In reply, Reece contends that Tiplick is distinguishable on the issue of vagueness and supports his position on the issue of a deficient charging information.

[8] The constitutionality of statutes is reviewed de novo. Conley v. State , 972 N.E.2d 864, 877 (Ind. 2012), reh'g denied. "Such review is ‘highly restrained’ and ‘very deferential,’ beginning ‘with [a] presumption of constitutional validity, and therefore the party challenging the statute labors under a heavy burden to show that the statute is unconstitutional.’ " Id. (quoting State v. Moss-Dwyer , 686 N.E.2d 109, 111-112 (Ind. 1997) ).

[9] " ‘Due process principles advise that a penal statute is void for vagueness if it does not clearly define its prohibitions,’ " and one such source of vagueness is if the statute lacks " ‘notice enabling ordinary people to understand the conduct that it prohibits.’ " State v. Thakar , 82 N.E.3d 257, 259 (Ind. 2017) (quoting Tiplick , 43 N.E.3d at 1262 (quoting Brown v. State , 868 N.E.2d 464, 467 (Ind. 2007) )). A statute will not be found unconstitutionally vague if individuals of ordinary intelligence would comprehend it adequately to inform them of the proscribed conduct. State v. Lombardo , 738 N.E.2d 653, 656 (Ind. 2000) (citing State v. Downey , 476 N.E.2d 121, 122 (Ind. 1985), reh'g denied ). The statute "need only inform the individual of the generally proscribed conduct, [and] need not list with itemized exactitude each item of conduct prohibited." Id. (quoting Downey , 476 N.E.2d at 122 ). Further, criminal statutes may be void for vagueness "for the possibility that it authorizes or encourages arbitrary or discriminatory enforcement." Gaines v. State , 973 N.E.2d 1239, 1243 (Ind. Ct. App. 2012) (citing Brown , 868 N.E.2d at 467 ). Finally, "it is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts of the case at hand." Lombardo , 738 N.E.2d at 656 (quoting Davis v. State , 476 N.E.2d 127, 130 (Ind. Ct. App. 1985) (quoting United States v. Mazurie , 419 U.S. 544, 550, 95 S. Ct. 710, 42 L.Ed.2d 706 (1975) ), reh'g denied , trans. denied ).

[10] To the extent resolution of this issue requires that we interpret Ind. Code §§ 35-47-4-5 and 1-1-2-4, we interpret statutes "with a primary goal in mind: ‘to fulfill the legislature's intent.’ " Jackson v. State , 105 N.E.3d 1081, 1087 (Ind. 2018) (quoting Mi.D. v. State , 57 N.E.3d 809, 812 (Ind. 2016) ), reh'g denied. If a statute is unambiguous, we must give the statute its clear and plain meaning. Bolin v. Wingert , 764 N.E.2d 201, 204 (Ind. 2002). A statute is unambiguous if it is not susceptible to more than one interpretation. Elmer Buchta Trucking, Inc. v. Stanley , 744 N.E.2d 939, 942 (Ind. 2001). If a statute is susceptible to multiple interpretations, we must try to ascertain the legislature's intent and interpret the statute so as to effectuate that intent. Bolin , 764 N.E.2d at 204. We presume the legislature intended logical application of the language used in the statute, so as to avoid unjust or absurd results. Id. A statute should be examined as a whole, avoiding excessive reliance upon a strict literal meaning or the selective reading of individual words. Mayes v. Second Injury Fund , 888 N.E.2d 773, 776 (Ind. 2008).

[11] In Healthscript , the State charged Healthscript, Inc. ("Healthscript") with Medicaid Fraud for allegedly overcharging Medicaid for products it provided to its customers. 770 N.E.2d at 812. The trial court denied Healthscript's motion to dismiss. Id. On appeal, the Indiana Supreme Court reversed, finding that the statute under which Healthscript was charged was too vague to meet the requirements of due process. Id. Specifically, the Court found that the penal statute at issue, Ind. Code § 35-43-5-7.1(a)(1), cross-referenced Ind. Code Article 12-15, which the Court described as "an entire article of the Indiana Code, covering 50 pages of the 1993 Code and comprising 280 sections organized in 37 chapters." Id. at 816. The Court held that "[t]he effect of the statute ... is to say that a provider is prohibited from filing a Medicaid claim ‘in violation of’ nothing more specific than this vast expanse of the Indiana Code," which the Court held did not constitute "fair warning...