UNITED STATES OF AMERICA, Plaintiff-Appellee, v. D.D.B., Defendant-Appellant.
No. 17-2563
United States Court of Appeals For the Seventh Circuit
ARGUED FEBRUARY 16, 2018 – DECIDED SEPTEMBER 11, 2018
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:17-cr-00131-WTL-TAB-1 — Jane Magnus-Stinson, Chief Judge.
Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit Judges.
I.
D.D.B., along with an adult accomplice, robbed a pharmacy and was quickly apprehended by the police. Because he was under eighteen years of age at the time, the government charged him with committing acts of juvenile delinquency that would be crimes if committed by an adult—robbery under
Soon after, the government moved to transfer D.D.B. to adult proceedings. The statute governing such a transfer,
The government originally alleged that D.D.B. had two prior juvenile delinquency adjudications that would serve as predicates for the mandatory transfer under
The district court held that it is indeed a crime of violence. Generally, this court reviews a district court’s transfer decision under
A. Was the appeal timely filed?
Before deciding whether D.D.B.’s predicate crime of attempted robbery qualifies as a crime of violence, we must address one jurisdictional issue. The government claims that D.D.B. failed to file his appeal of the transfer order within the fourteen days allowed to file a notice of appeal in a criminal matter.
Federal agents took D.D.B. into custody on May 15, 2017, and on that same day the government filed a motion for mandatory transfer for criminal prosecution. The judge granted the motion for a transfer to adult proceedings on July 5, 2017, and six days later, on July 11, 2017, the government indicted D.D.B., charging him as an adult. At some point, the exact time of which is unclear, the docket for D.D.B.’s juvenile adjudication merged with the docket for the criminal case. D.D.B’s counsel did not learn of the merger until August 1, 2017, when the court notified
We find that the appeal from a
The government correctly does not contest that juvenile proceedings are civil in nature; it argues instead that the civil proceeding ended the moment D.D.B. was transferred for criminal prosecution, or at least when he was indicted and the case docketed under a criminal case number. (It is unclear which of these is the exact point of demarcation to which the government refers—the indictment or the moment when the clerk docketed the case under a criminal cause number). The government concludes, therefore, that D.D.B.’s time to appeal depends on his current status as a criminal defendant rather than the nature of the proceeding from which he is appealing. This cannot be so. The government claims that because it was successful in its transfer proceeding, D.D.B. had but fourteen days to appeal. Under the defendant’s theory, if D.D.B. had prevailed in the
Moreover, what would have happened if the government had waited 15 days to file the indictment, or 60 days or 120 days
But we need not wrestle with these hypothetical possibilities. A transfer proceeding is a civil proceeding for most intents and purposes, and therefore the appeal from it is a civil appeal and may be filed within the sixty-day timeframe for civil appeals. We can turn our attention instead to whether attempted robbery in Indiana is a crime of violence.
B. Is attempted robbery under Indiana law a violent crime?
We begin first with a short explanation of what it means for a crime to be, what we are calling as a shorthand, “a crime of violence.” Sprinkled throughout criminal law are various statutes and Sentencing Guidelines that increase penalties or consequences based on a defendant’s past crimes. See, e.g.,
At first blush, it seems like the answer to the question “is Indiana attempted robbery a violent crime?” has been unequivocally answered by two recent decisions from this court, United States v. Duncan, 833 F.3d 751 (7th Cir. 2016), and Hill v. United States, 877 F.3d 717 (7th Cir. 2017). In Duncan, we held that robbery under Indiana law qualifies as a violent felony. Duncan, 833 F.3d at 758.2 And in Hill we held that “[w]hen a substantive offense would be a violent felony under
And so it seems Hill would tie this all up neatly in a bow and make for a very concise opinion. There is but one snag: the conclusion in Hill is premised on the notion that a “conviction of attempt requires proof of intent to commit all elements of the completed crime.” Hill, 877 F.3d at 719 (emphasis ours), and as we will see in a moment, Indiana’s attempted robbery statute is anomalous in that it does not contain an intent requirement. In other words, the reasoning in Hill depends on the premise that the defendant had the proper intent:
Given the statutory specification that an element of attempted force operates the same as an element of completed force, and the rule that conviction of attempt requires proof of intent to commit all elements of the completed crime, we now adopt Judge Hamilton’s analysis as the law of the circuit. When a substantive offense would be a violent felony under
§ 924(e) and similar statutes, an attempt to commit that offense also is a violent felony.
Id. at 719 (emphasis ours). We note that the holding of Hill starts with two particular “givens” or premises. The first one (which is not at issue in this case) is that an element of attempted force operates the same as an element of completed force. The second premise, and the one that is critical to this case, is that “conviction of attempt requires proof of intent to commit all elements of the completed crime” Id.
In Morris, Judge Hamilton hung his hat on this same intent hook when reasoning in his concurrence that “[a]ttempt requires intent to commit the completed crime plus a substantial step toward its completion.” Morris, 827 F.3d at 698 (Hamilton, J. concurring) (emphasis ours). And, as we explained in Hill:
Judge Hamilton recognized that the crime of attempt requires only a substantial step toward completion, but he thought it sufficient that one must intend to commit every element of the completed crime in order to be guilty of attempt. When the intent element of the attempt offense includes intent to commit violence against the person of another, Judge Hamilton concluded, it makes sense to say that the attempt crime itself includes violence as an element.
Hill, 877 F.3d at 719 (emphasis in original). In other words, the premise of both Judge Hamilton’s concurrence in Morris and the panel decision in Hill is that the attempt law contains an intent provision because “one must intend to commit every element of the completed crime in order to be guilty of attempt.” Id. (emphasis in original).
In most criminal attempt statutes this premise is true—that is, the statute requires proof of intent to commit every element of the completed crime. For example, Illinois’ attempt statute, which was at issue in Hill, states, “A person commits the offense of attempt when, with intent to commit a specific offense, he or she does any act that constitutes a substantial step toward the commission of that offense.”
Indiana, however, is anomalous. That State’s definition of attempted robbery does not require intent. Indiana’s attempted robbery definition arises from a reading of the robbery and attempt statute together. They state as follows:
Ind. Code § 35-42-5-1 . Robbery.a person who knowingly or intentionally takes property from another person or from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits robbery ...
Ind. Code § 35-41-5-1(a) . AttemptA person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime.
The Indiana Supreme Court has been clear that the Indiana attempt law does not require the government to show intent (other than for murder), but rather only that a defendant took a substantial step toward commission of the crime. Richeson v. State, 704 N.E.2d 1008, 1010 (Ind. 1998). In other words, the Indiana “statutes defining attempt and robbery do not require the State to prove that the defendant intended to commit robbery.” Henderson v. State, 825 N.E.2d 983, 987 (Ind. Ct. App. 2005).
One must commit the crime only with “the culpability required for commission of the crime.”
To understand why the lack of intent in the Indiana attempted robbery statute is important, we need to backtrack a bit and discuss what is essential to the understanding of a predicate crime. To determine whether a prior crime is a crime of violence, we look at the crime categorically. That is, we look only at the elements of the offense and not the facts underlying the conviction. Descamps v. United States, 570 U.S. 254, 261 (2013). “The categorical approach serves ‘practical’ purposes: It promotes judicial and administrative efficiency by precluding the relitigation of past convictions
- engaging in conduct that constitutes a substantial step toward;
- the knowing or intentional;
- taking of property from the person or presence of another;
- by using or threatening the use of force on another person or putting another person in fear.
Stokes v. State, 922 N.E.2d 758, 764 (Ind. Ct. App. 2010). See also, Ind. Pattern Jury Instruction (criminal) No. 2.0100. Intent is not an element and so a conviction by itself does not establish that the defendant had intent. He could simply knowingly take a substantial step toward the taking of property through force or fear. One would have to look behind the conviction to the underlying facts to know if he had the intent to commit the crime, and this we cannot do.
Under the holding of Apprendi, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).3 Because intent is not an element of attempted robbery in Indiana, no jury or finder of fact has ever found that D.D.B. had any intent to use force, threaten to use force on another person, or put another person in fear. As a point of comparison, a person who has been convicted of attempted robbery in Illinois has necessarily been found by a jury (or judge acting as trier of fact) to have had an intent to use force, threaten to use force on another person, or put another person in fear. This is because “[p]roof of specific intent to rob” is an essential element of the crime of attempted robbery under Illinois law. People v. Turner, 246 N.E.2d 817, 820 (1969); People v. Hawkins, 203 N.E.2d 761, 763 (1964). Therefore, the defendant must have intended to commit each element of the crime. This makes D.D.B.’s attempted robbery
One way to view the reasoning in Hill is to say that under the definition of attempted robbery in Illinois, once a person intends to attempt to commit robbery, that person has made a decision that she is “all in” on all aspects of the crime, including the violence. “Even though the substantial step(s) may have fallen short of actual or threatened physical force, the criminal has, by definition, attempted to use or threaten physical force because he has attempted to commit a crime that would be violent if completed.” Morris, 827 F.3d at 698 (Hamilton, J., concurring). We can logically say, therefore, that the “attempt to commit the crime necessarily includes an attempt to use or to threaten use of physical force against the person or property of another.” Id. at 699. But we cannot say the same about the person who is attempting robbery in Indiana. We do not know what the Indiana robber’s intent was if the crime has been interrupted and has merely been attempted, but not completed, as a conviction for attempt does not require proof of intent.
The district court erred by simply applying the rationale of Duncan and Hill—that any attempted violent felony is itself a violent felony—to the crime of attempted robbery in Indiana. The district court failed to consider the import of intent to this analysis and the lack of an intent requirement in Indiana’s crime of attempted robbery.
In sum, because the crime of attempted robbery in Indiana does not require a finding of intent, the reasoning of Hill does not apply. No finder-of-fact has found that D.D.B. had an intent to use, attempt to use, or threatened the use of physical force against the person of another.