McConney J. George v. State of Indiana
18A-CR-2300
| Ind. Ct. App. | Jan 23, 2020Background
- On May 23, 2018 police stopped George for running a stop sign, detected the odor of marijuana, and a K9 alerted; a search uncovered a handgun (later traced as stolen) in the vehicle and a baggie of marijuana on George at booking.
- George was charged with multiple counts including Level 4 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 bifurcated jury trial George was acquitted of firearm theft but convicted of unlawful possession by a serious violent felon, carrying without a license, and possession of marijuana.
- The trial court sentenced George to 10 years (Level 4), 1 year (misdemeanor carrying) concurrent, and 180 days (marijuana) consecutive to the 10-year sentence; time served was ordered executed.
- On appeal George raised three issues: double jeopardy as to the two weapon convictions, whether the trial court abused sentencing discretion by treating his initial refusal to cooperate with the PSI as an aggravator, and whether his aggregate sentence was inappropriate under Appellate Rule 7(B).
- The Court of Appeals affirmed in part, vacated the misdemeanor carrying conviction on double jeopardy grounds, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Double jeopardy from concurrent convictions for the same handgun | State conceded that convicting on both offenses (carrying without a license and unlawful possession by a serious violent felon) violates Indiana double jeopardy principles | George argued the two convictions impermissibly punished the same possession of one handgun | Vacated the Class A misdemeanor carrying conviction (double jeopardy); retained Level 4 conviction |
| Sentencing: use of defendant's refusal to cooperate with the PSI as an aggravator | Trial court (State) maintained refusal/poor attitude was a permissible aggravator and the record supported it | George argued his silence during PSI (Fifth Amendment concerns) should not be an aggravator | Court held no abuse of discretion: refusal did not appear tied to Fifth Amendment concerns and, in any event, other valid aggravators would sustain the sentence |
| Appellate Rule 7(B): appropriateness of 10-year + 180-day sentence | State argued sentence appropriate given felony status, parole violation, and violent criminal history | George argued sentence excessive because gun was not used in a crime and marijuana was a small amount; he urged leniency | Court found sentence not inappropriate in light of nature of offenses and George’s serious, repetitive violent criminal history |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (establishes the same-elements test for double jeopardy)
- Richardson v. State, 717 N.E.2d 32 (Ind. 1999) (Indiana requires comparison of statutory elements and actual evidence for double jeopardy analysis)
- Jarrell v. State, 818 N.E.2d 88 (Ind. Ct. App. 2004) (vacating carrying conviction where same gun possession supported both convictions)
- Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) (standards for reviewing sentencing discretion and identifying sentencing abuses)
- Groves v. State, 787 N.E.2d 401 (Ind. Ct. App. 2003) (courts may affirm sentences if sufficient valid aggravators exist even when one aggravator is improper)