McNary v. State
| Citation | 297 N.E.2d 853,156 Ind.App. 582 |
| Decision Date | 28 June 1973 |
| Docket Number | No. 2--373A57,2--373A57 |
| Parties | Kenneth McNARY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Herbert W. Johnson, Jr., Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., for appellee.
At the outset of this case two affidavits were filed under separate cause numbers against the Appellant. One affidavit charged Appellant with the offenses of armed robbery, physical injury while in the commission of robbery and violation of the 1935 Firearms Act by carrying a pistol without a license. In the second affidavit Appellant was charged with the commission of a felony while armed to-wit: robbery and also charged with violation of the 1935 Firearms Act.
Appellant entered pleas of guilty to both charges of violating the 1935 Firearms Act. The Appellant was then sentenced to imprisonment for a determinate period of ten (10) years on each violation of the 1935 Firearms Act, the terms to run concurrently. All other charges against the Appellant were then dismissed on motion of the State of Indiana. After such pleas of guilty and dismissals the Appellant filed in each case a Petition for Election of Treatment Subsequent to Prosecution which purports to be under authority of IC 1971 16--13--7.5--18, Ind.Ann.Stat. § 9--3918 (Burns 1972 Supp.). After hearing, said petitions were denied and such is the sole contention of error here.
The relevant statutes for the determination of this case are:
'9--3916. IC 16--13--7.5--16. Drug abusers charged with or convicted of crime--Election of treatment in lieu of prosecution or parole--Exceptions--Conditions--A drug abuser charged with or convicted of a crime is eligible to elect treatment under the supervision of the department instead of prosecution or probation, as the case may be, unless (a) the crime is a crime of violence, (b) the crime is that of selling a narcotic or dangerous drug, (c) the drug abuser has a record of two (2) or more convictions of a crime of violence, (d) other criminal proceedings alleging commission of a felony are pending against the drug abuser, or (e) the drug abuser is on probation or parole and the appropriate parole or probation authority does not consent to that election, or (f) the drug abuser elected and was admitted to a treatment program on two (2) prior occasions within any consecutive two (2) year period. An eligible drug abuser may not be admitted to a treatment program, however, unless the authorities concerned consent as hereinafter set forth. (IC 1971, 16--13--17--16 (16--13--7.5--16 ad amended), as added by Acts 1971, P.L. 222, § 1, p. 882; 1972, P.L. 11, § 7, p. 146.)
'9--3918. IC 16--13--7.5--18. Election of treatment after conviction--Procedure--Probation.--If a court has reason to believe that an individual convicted of a crime is a drug abuser or the individual states that he is a drug abuser and the court finds that he is eligible to make the election provided for under section 16 ( § 9--3916), the court may advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by the department. In offering an individual an election, the court shall advise him that (a) if he elects to submit to treatment and is accepted he may be placed on probation and under the supervision of the department for a period not to exceed the maximum sentence that could be imposed for his conviction or three (3) years, whichever is less; (b) during probation he may be confined to an institution or, at the discretion of the department, he may be released for treatment or supervised aftercare in the community; and (c) if he adheres to the treatment program and fulfills the other conditions of probation, he will be discharged, but any failure to adhere to the treatment program is a breach of probation under the treatment supervision of the department and probation supervision of the proper probation authorities regardless of the election of the individual.
If the individual elects to undergo treatment or is certified for treatment, the court shall order an examination by the department to determine whether he is a drug abuser and is likely to be rehabilitated through treatment. The department shall report to the court the results of the examination and recommend whether the individual should be placed on probation and supervision for treatment. If the court, acting on the report and other information coming to its attention, determines that the individual is not a drug abuser, or is a drug abuser not likely to be rehabilitated through treatment, the court shall proceed to pronounce sentence as in other cases. If the court determines that the individual is a drug abuser and is likely to be rehabilitated through treatment, the court may place him on probation and under the supervision of the department for treatment and of the proper probation authorities for probation supervision and may...
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