State v. Moss-Dwyer, MOSS-DWYE

Docket NºNo. 45S00-9610-CR-657
Citation686 N.E.2d 109
Case DateOctober 23, 1997
CourtSupreme Court of Indiana

Page 109

686 N.E.2d 109
STATE of Indiana, Appellant (Plaintiff Below),
v.
Kathleen MOSS-DWYER, Appellee (Defendant Below).
No. 45S00-9610-CR-657.
Supreme Court of Indiana.
Oct. 23, 1997.

Page 110

Pamela Carter, Attorney General, Andrew L. Hedges, Deputy Attorney General, Indianapolis, for Appellant.

Marce Gonzalez, Jr., Merrillville, Thomas W. Vanes, Merrillville, for Appellee.

SHEPARD, Chief Justice.

The General Assembly has classified the crime of giving false information in an application for a handgun license as a class C felony. The Lake Superior Court held that this penalty was facially unconstitutional as a violation of the proportionality requirement of the Indiana Constitution, Article I, Section 16. 1

The trial court certified its order for interlocutory appeal, and we accepted jurisdiction to consider the constitutional issue presented. 2 Ind.App.Rule 4(A)(8). We reverse.

Facts

The facts relevant to this appeal are uncontroverted. The State charged Moss-Dwyer with giving false information in applying for a license to carry a handgun in violation of Ind.Code § 35-47-2-17. According to the probable cause affidavit, Moss-Dwyer listed her former marital residence as her current address on the application. Such a violation is a class C felony, according to the penalty provision of Ind.Code § 35-47-2-23(b).

Standard of Review

Whether a statute is constitutional on its face is a question of law. In the Matter of Public Law No. 154-1990 (H.E.A. 1044), 561 N.E.2d 791 (Ind.1990); Dunbar v. State, 160 Ind.App. 191, 311 N.E.2d 447 (1974). Where the issue presented on appeal is a pure question of law, we review the matter de novo. Brown v. State, 653 N.E.2d 77 (Ind.1995); MacLeod v. Guardianship of Hunter, 671 N.E.2d 177 (Ind.App.1996); George S. May Intern. Co. v. King, 629 N.E.2d 257 (Ind.App.1994).

The Statutes at Issue

In reaching its conclusion that the penalty provision at issue was unconstitutional, the

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trial court compared the penalty for giving false information to obtain a license and the penalty for carrying a handgun without a license.

Indiana Code § 35-47-2-17 reads in pertinent part: "No person, in purchasing or otherwise securing delivery of a handgun or in applying for a license to carry a handgun, shall give false information or offer false evidence of identity." 3 Indiana Code § 35-47-2-1 reads: "Except as provided in section 2 of this chapter, a person shall not carry a handgun in any vehicle or on or about his person, except in his dwelling, on his property or fixed place of business, without a license issued under this chapter being in his possession." 4 The first offense is a class C felony; the second offense is a class A misdemeanor. 5

The standard penalty for a class C felony, with which Moss-Dwyer has been charged, is a prison term of five years. Ind.Code Ann. § 35-50-2-6 (West Supp.1996). The penalty for a class A misdemeanor is a prison term of not more than one year. Ind.Code Ann. § 35-50-3-2 (West 1986).

Summary of Arguments

To justify reversal, the State argues primarily that the trial court impermissibly invaded the legislative domain. According to the Attorney General, "Fixing the penalties for crimes is generally reserved for the legislature.... The trial court impermissibly infringed on a legislative prerogative when it declared that submitting a false handgun application was not more serious than carrying a handgun without a license." (Appellant's Br. at 3.)

The crux of Moss-Dwyer's argument is that the handgun licensing statutes are inconsistent and poorly drafted, resulting in a disproportionate penalty scheme the likes of which we struck down in Conner v. State, 626 N.E.2d 803 (Ind.1993).

Is This Unconstitutional?

Article I, Section 16, of the Indiana Constitution requires that "[a]ll penalties shall be proportioned to the nature of the offense." As we observed in Conner, much of the recent case law interpreting the proportionality clause of Section 16 involves sentencing enhancements based on habitual offender designation. 626 N.E.2d at 806. See e.g., Clark v. State, 561 N.E.2d 759 (Ind.1990); Taylor v. State, 511 N.E.2d 1036 (Ind.1987); Schnitz v. State, 650 N.E.2d 717 (Ind.Ct.App.1995); Steelman v. State, 602 N.E.2d 152 (Ind.App.1992). In those cases, the proportionality review involves a two-step analysis which focuses on the nature and gravity of the present offense and that of the prior offenses. In cases such as this, where the statutory punishment of a single crime is alleged to be constitutionally disproportionate, our analysis is more straightforward. Conner, 626 N.E.2d at 806.

Indiana courts have consistently supported the proposition that "[t]he nature and extent of penal sanctions are primarily legislative considerations...." Person v. State, 661 N.E.2d 587, 593 (Ind.App.1996), trans. denied. 6 Our separation of powers doctrine requires we take a highly restrained approach when reviewing legislative prescriptions of punishments. While legislative decisions do not completely escape review, "judicial review of a legislatively sanctioned penalty is very deferential." Person, 661 N.E.2d at 593 (citing Conner, 626 N.E.2d at 806). We will not disturb the legislative determination of the appropriate penalty for criminal behavior except upon a showing of

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clear constitutional infirmity. Steelman, 602 N.E.2d at 160. As the court stated in Person, "When considering the...

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86 practice notes
  • Chaffee v. Seslar, No. 17A03-0011-CV-418.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 13, 2001
    ...Ind.Code § 34-18-11-1. When an issue presented on appeal is a pure question of law, we review the matter de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997). "A pure question of law is one that requires neither reference to extrinsic evidence, the drawing of inferences therefrom, n......
  • Tiplick v. State, No. 49S04–1505–CR–287.
    • United States
    • Indiana Supreme Court of Indiana
    • October 7, 2015
    ...of legislative authority under Indiana law. The creation of criminal statutes is an inherently legislative function. State v. Moss–Dwyer, 686 N.E.2d 109, 111 (Ind.1997) (“Indiana courts have consistently supported the proposition that the nature and extent of penal sanctions are primarily l......
  • Henson v. State, No. 49A05-0302-CR-73.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 23, 2003
    ...evidence. Id. However, where the issue presented on appeal is a question of law, we review the matter de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. B. The Historical Development of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 During the prohibition era, law ......
  • Wadle v. State, Supreme Court Case No. 19S-CR-340
    • United States
    • Indiana Supreme Court of Indiana
    • August 18, 2020
    ...infirmity," this Court generally will "not disturb the legislative determination of the appropriate penalty." State v. Moss-Dwyer , 686 N.E.2d 109, 111–12 (Ind. 1997). Other times, we ask if the severity of the punishment would "shock public sentiment and violate the judgment of a reasonabl......
  • Request a trial to view additional results
86 cases
  • Chaffee v. Seslar, No. 17A03-0011-CV-418.
    • United States
    • Indiana Court of Appeals of Indiana
    • July 13, 2001
    ...Ind.Code § 34-18-11-1. When an issue presented on appeal is a pure question of law, we review the matter de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind.1997). "A pure question of law is one that requires neither reference to extrinsic evidence, the drawing of inferences therefrom, n......
  • Tiplick v. State, No. 49S04–1505–CR–287.
    • United States
    • Indiana Supreme Court of Indiana
    • October 7, 2015
    ...of legislative authority under Indiana law. The creation of criminal statutes is an inherently legislative function. State v. Moss–Dwyer, 686 N.E.2d 109, 111 (Ind.1997) (“Indiana courts have consistently supported the proposition that the nature and extent of penal sanctions are primarily l......
  • Henson v. State, No. 49A05-0302-CR-73.
    • United States
    • Indiana Court of Appeals of Indiana
    • June 23, 2003
    ...evidence. Id. However, where the issue presented on appeal is a question of law, we review the matter de novo. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. B. The Historical Development of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 During the prohibition era, law ......
  • Wadle v. State, Supreme Court Case No. 19S-CR-340
    • United States
    • Indiana Supreme Court of Indiana
    • August 18, 2020
    ...infirmity," this Court generally will "not disturb the legislative determination of the appropriate penalty." State v. Moss-Dwyer , 686 N.E.2d 109, 111–12 (Ind. 1997). Other times, we ask if the severity of the punishment would "shock public sentiment and violate the judgment of a reasonabl......
  • Request a trial to view additional results

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