Kocielko v. State
2010 Ind. App. LEXIS 2246
| Ind. Ct. App. | 2010Background
- Kocielko was charged with three counts of Sexual Misconduct with a Minor and alleged as a habitual offender.
- First trial ended with a hung jury on two counts and acquittal on the breast-touching count.
- Retrial in January 2010 resulted in convictions on deviate sexual conduct (Class B) and fondling (Class C) and a habitual-offender finding.
- Sentence following retrial: 20 years for Count I and 8 years for Count II, plus 30-year enhancements, all to run concurrently for a 50-year aggregate.
- Court affirmed the Class B conviction and habitual offender adjudication but remanded to set aside the Class C felony conviction and related sentence due to double jeopardy in a single-confrontation scenario.
- Other challenges included alleged trial-security issues, self-representation, denial of a publicDNA expert, and asserted inappropriate sentencing; these were resolved unfavorably for Kocielko in various respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy on retrial after hung jury | Kocielko argues retrial violated jeopardy because counts were connected. | Kocielko contends implied acquittals and same-conduct issues bar retrial. | Retrial permissible; no implied acquittal bar; separate offenses proven by distinct elements. |
| Consecutive convictions for acts in one confrontation | State asserts multiple convictions justified by distinct acts. | Bowling/Watkins ban multiple sentences for same confrontation. | Remand to set aside Class C conviction; permissible to convict on two offenses but not to impose both sentences. |
| Security measures affected fair trial | Hidden restraints and officer seating could prejudice jurors. | Security measures caused no actual harm. | No reversible error; no demonstrated actual prejudice. |
| Knowing and intelligent waiver of counsel | - | Waiver was not adequately informed? | Waiver was knowing and intelligent given warnings, context, and timing. |
| DNA expert at public expense | Appointment would aid defense given DNA complexity. | Trial court should fund DNA expert; specifics lacking. | No abuse of discretion; defendant failed to specify identity/cost/benefit; denial affirmed. |
Key Cases Cited
- Price v. Georgia, 398 U.S. 323 (1970) (jeopardy does not bar retrial after a hung jury; no implied acquittal)
- Tibbs v. Florida, 457 U.S. 31 (1982) (hung jury does not prevent retrial under double jeopardy)
- Bowling v. State, 560 N.E.2d 658 (Ind. 1990) (two sentences for same injury in single confrontation improper)
- Watkins v. State, 575 N.E.2d 624 (Ind. 1991) (acts within moments of each other may not support multiple convictions)
- Richardson v. State, 717 N.E.2d 32 (Ind.1999) (two offenses same if elements or evidence overlap)
- Kubsch v. State, 866 N.E.2d 726 (Ind.2007) (waiver of counsel requires analysis of advisement and context)
- Faretta v. California, 422 U.S. 806 (1975) (right to proceed pro se requires adequate advice on dangers)
- Francis v. State, 758 N.E.2d 528 (Ind.2001) (juror admonitions and handling of restraints considered on review)