ACO Confirms Denial of Motion to Discontinue Illegal Possession of Firearm Charge

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An Indianapolis man will not have his charge of unlawful possession of a firearm by a serious violent criminal dropped because the Indiana Court of Appeals ruled that his constitutional rights were not violated when the The state applied Indiana Code § 35-47-4-5 to his case.

Courtney Reece was convicted of conspiracy to commit burglary as a Class B felony in August 2005. In January 2021, the state charged Reece with unlawful possession of a firearm by a serious violent criminal in as a level 4 felony and possession of marijuana as a class B misdemeanor.

In April, Reece filed a motion to dismiss and argued that the felony charge was flawed under IC 35-34-1-4 (a) (1) because IC 35-47-4-5 was void. for vagueness, because “fails to provide sufficient notice that Indiana’s attempts and conspiracies … may predicate serious violent crimes” and should be rejected under CI 35-34-1-4 (a ) (5). Marion Superior Court held a hearing on April 28 and dismissed Reece’s motion.

On appeal, Reece argued that, like the law in Healthscript, Inc. v. State, 770 NE2d 810 (Ind. 2002), did not give fair warning to individuals and did not have sufficient precision required by due process, IC 35-47-4-5 was also deficient. He also claimed that the billing information did not contain any reference to IC 1-1-2-4 (b).

The cited state Tiplick v. State, 43 NE3d 1259 (Ind. 2015), but Reece argued Tiplick stood out on the issue of vagueness and supported its position on the issue of deficient pricing information.

The COA upheld the trial court’s dismissal of Reece’s petition.

“Unlike Health script, in which the Court concluded that understanding the prohibited conduct would require reviewing an entire section of the Code as well as “the language of an agency rule in the Indiana Administrative Code”, and Tiplick, which involved the definition of a drug in the context of the evolution of synthetic cannabinoid chemistry and the application of an emergency rule adopted by the Indiana Board of Pharmacy, this case does not require consideration that of the code of India § 35-47-4 -5 and Ind. Code § 1-1-2-4, which is found at the beginning of the Indiana Code under Chapter 1-1-2 of the Ind. widely applicable, titled “Laws Governing the State” ”COA judge Elaine Brown wrote.

“Further, this India Code § 35-47-4-5 does not specifically refer to India Code § 1-1-2-4 does not make the law vague as applied” Brown continued. “The Indiana Supreme Court observed that”[t]the legislator knows how to apply a legal definition in the broad sense ‘and'[e]examples abound of the application by the legislator of a definition in all the code….

“… Under these circumstances, we cannot say that the India Code § 35-47-4-5 is void for vagueness as applied to Reece,” Brown concluded.

The case is Courtney L. Reece v. Indiana State, 21A-CR-864.

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