Teer v. State

• Decision Date: 09 November 2000
• Docket Number: No. 69A01-0006-CR-193.,69A01-0006-CR-193.
• Citation: 738 N.E.2d 283
• Parties: Gary TEER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

738 N.E.2d 283

Gary TEER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 69A01-0006-CR-193.

Court of Appeals of Indiana.

November 9, 2000.

Transfer Denied January 17, 2001.

Leanna Weissmann, Lawrenceburg, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BAKER, Judge

Appellant-defendant Gary Teer appeals his conviction for unlawful possession of a firearm by a serious violent felon,¹ a class B felony. He contends that 1) the serious violent felon statute violates both the U.S. and Indiana Constitution; 2) the trial court erred in admitting evidence that should have been suppressed on Fourth Amendment grounds; and 3) the trial court improperly sentenced him to sixteen years in prison.

FACTS

The facts most favorable to the verdict indicate that on December 1, 1999, the Indiana State Police received information that Teer had a warrant for his arrest and that he was staying at his father's house near Milan, Indiana. During the early morning hours of December 1, 1999, the Indiana State Police assembled a team of ten or eleven officers to arrest Teer at the Milan house. After the arresting officers had stationed themselves around the house's perimeter, the commanding officer telephoned Amanda Teer, Gary's sister, and requested that she turn on the porch lights and open the front door.

Amanda Teer complied with the request, and then both she and Gary Teer stepped out of the house and onto the front porch. Once Gary Teer had stepped outside, an officer secured him while other officers began conducting a protective sweep of the house. During the protective sweep, an officer found a handgun on a shelf near the door to the front porch. None of the other four adults in the house claimed ownership of the handgun. When an officer asked Teer whether the handgun was his, Teer admitted that he owned it. R. at 353, 407.

On December 3, 1999, Teer was charged with possession of a firearm by a serious violent felon. Following a trial, the jury found him guilty as charged and the trial court sentenced him to sixteen years of incarceration. In enhancing Teer's sentence, the trial court stated, among other factors, the following aggravator: "Imposition of a reduced sentence or suspension of the sentence and imposition of probation would depreciate the seriousness of the crime." R. at 206. Teer now appeals.

DISCUSSION AND DECISION

I. Constitutional Challenges to the Statute

Teer first challenges the constitutionality of the serious violent felon statute, claiming that the statute violates 1) the ex post facto protections of both the U.S. and Indiana Constitution; 2) the Equal Protection Clause of the U.S. Constitution and the Equal Privileges and Immunities Clause of the Indiana Constitution; 3) the Eighth Amendment to the U.S. Constitution and Article I, § 16 of the Indiana Constitution; 4) Article I, § 18 of the Indiana Constitution; and 5) the Fourteenth Amendment Due Process Clause of the U.S. Constitution.

Whether a statute is constitutional on its face is a question of law. State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997). Where the issue presented on appeal is a pure question of law, we review the matter de novo. Id.

A. Ex Post Facto

The U.S. Constitution provides that "[n]o State shall ... pass any ... ex post facto Law." U.S. Const. art. I, § 10. Similarly, the Indiana Constitution provides that "[n]o ex post facto law ... shall ever be passed." Ind. Const. art. I, § 24 (emphasis in original). The ex post facto analysis is the same for both constitutional provisions. Spencer v. O'Connor, 707 N.E.2d 1039, 1042 (Ind.Ct.App.1999), trans. denied. The Ex Post Facto Clause prohibits a legislature from enacting any law that " `imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Id. (quoting Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)

). The inquiry focuses " `not on whether a legislative change produces some sort of `disadvantage,' ... but on whether any such change alters the definition of criminal conduct or increases a penalty by which a crime is punishable.'" Id. (omission in original) (quoting California Dep't of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995)).

Teer claims that the serious violent felony statute violates the ex post facto prohibition "because it uses a felony which occurred prior to the enactment of the statute to punish and outlaw once legal conduct." Appellant's brief at 7. In addressing Teer's contention, we find our supreme court's analysis of the habitual offender statute² instructive. In Funk v. State, the defendant had been convicted for a theft that he committed in May 1979. 427 N.E.2d 1081, 1087 (Ind.1981). Under the habitual offender statute, Funk's sentence was enhanced for the May 1979 theft because of his prior crimes. Id. Although Funk had committed these prior crimes before the habitual offender statute went into effect, his sentence for the May 1979 theft was still constitutionally enhanced. Our supreme court reasoned that the penalty was imposed for the last crime committed, that is, the May 1979 theft. In other words, the State was not punishing Funk for the crimes he committed before the habitual offender statute became effective. Id. Therefore, inasmuch as Funk was punished for the May 1979 crime, ex post facto protections were not impinged.

Teer's circumstances are similar. In the instant case, Teer was charged for a crime, possession of a firearm by a serious violent felon, he committed on December 1, 1999. The statute criminalizing this act was substantially amended, recodified, and became effective on July 1, 1999. See I.C. § 35-47-4-5 (Lexis Supp.2000) (original version at I.C. § 35-47-4-4 (Lexis 1998) became effective on July 1, 1994). The serious violent felony statute addresses and governs Teer's conduct on December 1, 1999. The statute essentially prohibits the possession of a firearm by a serious violent felon; it neither re-punishes Teer for the 1996 crime he committed nor enhances the penalty for the 1996 crime. See Spencer, 707 N.E.2d at 1042

. Accordingly, Teer's ex post facto challenge fails.

B. Equal Privileges and Immunities

Teer next claims that the serious violent felon statute violates both the Equal Protection Clause of the Fourteenth Amendment and Article I, Section 23 of the Indiana Constitution. Initially, we observe that the rules of appellate procedure require that an appellant's argument "contain the contentions of the appellant with respect to the issues presented, the reasons in support of the contentions along with citations to the authorities, statutes, and parts of the record relied upon." Ind. Appellate Rule 8.3(A)(7). However, Teer, focusing his contentions on Article I, Section 23, has failed to provide argument for a federal equal protection violation. Hence, Teer waives the equal protection argument. Rondon v. State, 711 N.E.2d 506, 512 (Ind.1999) ("Since Rondon did not develop a cogent Fourteenth Amendment argument as required by Ind. Appellate Rule 8.3(A)(7), we will discuss only his privileges and immunities claim under the Indiana Constitution.").

The Indiana Constitution provides, "The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Ind. Const. art. I, § 23. This provision imposes two requirements upon statutes that grant unequal privileges or immunities to differing classes of people. First, the disparate treatment accorded by the legislation must be reasonably related to the inherent characteristics that distinguish the unequally treated classes. Collins v. Day, 644 N.E.2d 72, 80 (Ind.1994). Second, the preferential treatment must be uniformly applicable and equally available to all persons similarly situated. Id. In determining whether a statute complies with Article I, Section 23, "courts must exercise substantial deference to legislative discretion." Id. The challenger carries the burden "to negative every reasonable basis for the classification." Id.

Teer argues that the serious violent felon statute unreasonably distinguishes "serious violent felons" from the general class of felons. Appellant's brief at 8. The distinction is unreasonable, he claims, because the statute defines a serious violent felon by listing twenty-six crimes rather than articulating a general definition. See I.C. § 35-47-4-5(b). Among these listed crimes is dealing in drugs, which Teer claims is not inherently violent. He also argues that the legislature omitted other violent crimes from the statute's reach that should have been included. For instance, Pointing a Firearm at Another Person³ or Criminal Recklessness⁴ as a D felony are crimes, both involving the use of deadly weapons, that were not deemed serious violent felonies. Appellant's brief at 9. The serious violent felons, he continues, are then treated disparately from the general class of felons. Appellant's brief at 8.

We note that " `[a] classification having some reasonable basis is not to be condemned merely because it is not framed with such mathematical nicety as to include all within the reason of classification and to exclude all others.'" Collins, 644 N.E.2d at 80 (alteration added) (quoting Cincinnati, H. & D. Ry. Co. v. McCullom, 183 Ind. 556, 561, 109 N.E. 206, 208 (1915)). Our legislature has decided to prohibit gun ownership by those who have committed a serious violent felony. The list of serious violent felonies contains crimes such as murder, rape, carjacking, stalking, and drug dealing among others. I.C. § 35-47-4-5(b). Because these crimes often involve violence, the legislature based its comprehensive list on a reasonable...