Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
JODI KATHRYN STEIN Deputy Attorney General
FILED Indianapolis, Indiana
Dec 12 2012, 9:28 am
IN THE CLERK of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and tax court
EARL McCLENDON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1206-CR-282 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Barbara A. Collins, Judge The Honorable Deborah Shook, Magistrate Cause No. 49F08-1110-CM-074190
December 12, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Earl McClendon (McClendon), appeals the trial court’s
denial of his motion requesting the return of his firearm.
We reverse and remand with instructions.
ISSUE
McClendon raises four issues on appeal, which we consolidate and restate as the
following single issue: Whether the trial court abused its discretion when it denied his
motion requesting the return of his firearm.
FACTS AND PROCEDURAL HISTORY
On October 15, 2011, Indianapolis Metropolitan Police Department Officer
Timothy Elliot (Officer Elliot) was traveling on 42nd Street in Indianapolis, Indiana, when
a Chevy Malibu vehicle approaching from the opposite direction traveled left of the
center lane and almost struck his patrol car. Both he and another officer on the road had
to perform evasive maneuvers to avoid contact with the vehicle. The Officers detained
the driver of the vehicle, McClendon, and transported him to the Indianapolis Police
Department. At the Department, a certified chemical test operator administered a
chemical test to McClendon and determined that he had an alcohol concentration
equivalent (ACE) of 0.17 grams of alcohol per two hundred ten liters of breath.
Subsequently, the Officers learned that McClendon’s license had previously been
suspended.
2 On October 16, 2011, the State filed an Information charging McClendon with
Count I, operating a vehicle while intoxicated endangering a person, a Class A
misdemeanor, Ind. Code § 9-30-5-2(b); Count II, operating a vehicle while intoxicated
with an ACE of 0.15 or above, a Class A misdemeanor, I.C. § 9-30-5-1(b); and Count III,
driving while suspended, a Class A misdemeanor, I.C. § 9-24-19-2. On December 5,
2011, the State moved to amend the Information by adding Count IV, resisting law
enforcement, a Class A misdemeanor, I.C. § 35-44-3-3. In its motion to amend the
Information, the State alleged that McClendon had put his hand on his firearm and
resisted the Officers by refusing to place his hands on the vehicle prior to his arrest. The
trial court granted the motion to amend the Information.
On May 9, 2012, McClendon pled guilty pursuant to a written plea agreement to
Counts II and IV. In exchange, the State dismissed Counts I and III. That same day, the
trial court held a hearing, at which it accepted the plea agreement and sentenced
McClendon to 365 days on each Count, with the sentences to be served concurrently and
363 days suspended to probation. After the sentencing portion of the hearing,
McClendon requested the return of his firearm, which had been confiscated pursuant to
his arrest. The trial court heard testimony by Officer Elliot, who testified that he had
ordered McClendon to place his hands on top of the car and that McClendon had instead
put his hands on his firearm. At the conclusion of the hearing, the trial court ordered the
firearm destroyed. The trial court granted McClendon’s request to stay the destruction
order pending appeal.
3 McClendon now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
McClendon argues on appeal that the trial court abused its discretion when it
denied his motion requesting the return of his firearm. He asserts that the trial court’s
decision violates I.C. § 35-47-3-2(b), which requires the trial court to return confiscated
firearms following the final disposition of a cause. In response, the State argues that the
trial court’s decision was proper because: (1) McClendon was convicted for the misuse
of a firearm; and (2) McClendon is an alcohol abuser and is thus no longer entitled to
possess the firearm.
When we review the denial of a motion for the return of property, we will affirm
unless the decision is clearly erroneous and cannot be sustained on any legal theory
supported by the evidence. Williams v. State, 952 N.E.2d 317, 319 (Ind. Ct. App. 2011).
Statutes that relate to search and seizure must be strictly construed in favor of the
constitutional right of the people. Id. The court, once its need for the property has
terminated, has both the jurisdiction and the duty to return seized property. Id.
The return of McClendon’s handgun is governed by I.C. § 35-47-3-2(b), which
provides:
Firearms shall be returned to the rightful owner at once following final disposition of the cause if a return has not already occurred under the terms of I.C. § 35-33-5. . . . However, nothing in this chapter shall be construed as requiring the return of firearms to rightful owners who have been convicted for the misuse of firearms.
4 The State asserts that the trial court should not return the firearm because
McClendon falls under the exception to section 35-47-3-2(b) for rightful owners
who have been convicted for the misuse of firearms. In response, McClendon
argues that his use of his firearm was not part of the factual basis for his plea
agreement and that he never admitted to touching his firearm. Accordingly, he
argues, he was not “convicted” for the “misuse of firearms.” We agree with
McClendon as none of the evidence underlying his conviction supports the State’s
contention that he misused his firearm.
Specifically, at the hearing, the State established the factual basis for McClendon’s
plea as follows:
As to Count 4, on or about October 15, 2011 in Marion County, State of Indiana, the following named defendant, [McClendon], did knowingly and forcibly resist, obstruct or interfere with Timothy Elliott, a law enforcement officer with the Indianapolis Metropolitan Police Department, while the [O]fficer was lawfully engage[d] in the execution of his duties as a law enforcement officer.
(Transcript pp. 5-6). McClendon admitted to the veracity of these allegations, but neither
the State nor McClendon made any references to McClendon’s firearm. The State
contends that although the factual basis did not provide any evidence that McClendon’s
conviction involved the misuse of his firearm, both the probable cause affidavit and the
State’s motion to amend the Information alleged that McClendon touched his firearm
while resisting law enforcement. However, we have previously noted that, absent a
defendant’s admission of the veracity of the contents of a probable cause affidavit or
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
JODI KATHRYN STEIN Deputy Attorney General
FILED Indianapolis, Indiana
Dec 12 2012, 9:28 am
IN THE CLERK of the supreme court,
COURT OF APPEALS OF INDIANA court of appeals and tax court
EARL McCLENDON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1206-CR-282 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Barbara A. Collins, Judge The Honorable Deborah Shook, Magistrate Cause No. 49F08-1110-CM-074190
December 12, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Earl McClendon (McClendon), appeals the trial court’s
denial of his motion requesting the return of his firearm.
We reverse and remand with instructions.
ISSUE
McClendon raises four issues on appeal, which we consolidate and restate as the
following single issue: Whether the trial court abused its discretion when it denied his
motion requesting the return of his firearm.
FACTS AND PROCEDURAL HISTORY
On October 15, 2011, Indianapolis Metropolitan Police Department Officer
Timothy Elliot (Officer Elliot) was traveling on 42nd Street in Indianapolis, Indiana, when
a Chevy Malibu vehicle approaching from the opposite direction traveled left of the
center lane and almost struck his patrol car. Both he and another officer on the road had
to perform evasive maneuvers to avoid contact with the vehicle. The Officers detained
the driver of the vehicle, McClendon, and transported him to the Indianapolis Police
Department. At the Department, a certified chemical test operator administered a
chemical test to McClendon and determined that he had an alcohol concentration
equivalent (ACE) of 0.17 grams of alcohol per two hundred ten liters of breath.
Subsequently, the Officers learned that McClendon’s license had previously been
suspended.
2 On October 16, 2011, the State filed an Information charging McClendon with
Count I, operating a vehicle while intoxicated endangering a person, a Class A
misdemeanor, Ind. Code § 9-30-5-2(b); Count II, operating a vehicle while intoxicated
with an ACE of 0.15 or above, a Class A misdemeanor, I.C. § 9-30-5-1(b); and Count III,
driving while suspended, a Class A misdemeanor, I.C. § 9-24-19-2. On December 5,
2011, the State moved to amend the Information by adding Count IV, resisting law
enforcement, a Class A misdemeanor, I.C. § 35-44-3-3. In its motion to amend the
Information, the State alleged that McClendon had put his hand on his firearm and
resisted the Officers by refusing to place his hands on the vehicle prior to his arrest. The
trial court granted the motion to amend the Information.
On May 9, 2012, McClendon pled guilty pursuant to a written plea agreement to
Counts II and IV. In exchange, the State dismissed Counts I and III. That same day, the
trial court held a hearing, at which it accepted the plea agreement and sentenced
McClendon to 365 days on each Count, with the sentences to be served concurrently and
363 days suspended to probation. After the sentencing portion of the hearing,
McClendon requested the return of his firearm, which had been confiscated pursuant to
his arrest. The trial court heard testimony by Officer Elliot, who testified that he had
ordered McClendon to place his hands on top of the car and that McClendon had instead
put his hands on his firearm. At the conclusion of the hearing, the trial court ordered the
firearm destroyed. The trial court granted McClendon’s request to stay the destruction
order pending appeal.
3 McClendon now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
McClendon argues on appeal that the trial court abused its discretion when it
denied his motion requesting the return of his firearm. He asserts that the trial court’s
decision violates I.C. § 35-47-3-2(b), which requires the trial court to return confiscated
firearms following the final disposition of a cause. In response, the State argues that the
trial court’s decision was proper because: (1) McClendon was convicted for the misuse
of a firearm; and (2) McClendon is an alcohol abuser and is thus no longer entitled to
possess the firearm.
When we review the denial of a motion for the return of property, we will affirm
unless the decision is clearly erroneous and cannot be sustained on any legal theory
supported by the evidence. Williams v. State, 952 N.E.2d 317, 319 (Ind. Ct. App. 2011).
Statutes that relate to search and seizure must be strictly construed in favor of the
constitutional right of the people. Id. The court, once its need for the property has
terminated, has both the jurisdiction and the duty to return seized property. Id.
The return of McClendon’s handgun is governed by I.C. § 35-47-3-2(b), which
provides:
Firearms shall be returned to the rightful owner at once following final disposition of the cause if a return has not already occurred under the terms of I.C. § 35-33-5. . . . However, nothing in this chapter shall be construed as requiring the return of firearms to rightful owners who have been convicted for the misuse of firearms.
4 The State asserts that the trial court should not return the firearm because
McClendon falls under the exception to section 35-47-3-2(b) for rightful owners
who have been convicted for the misuse of firearms. In response, McClendon
argues that his use of his firearm was not part of the factual basis for his plea
agreement and that he never admitted to touching his firearm. Accordingly, he
argues, he was not “convicted” for the “misuse of firearms.” We agree with
McClendon as none of the evidence underlying his conviction supports the State’s
contention that he misused his firearm.
Specifically, at the hearing, the State established the factual basis for McClendon’s
plea as follows:
As to Count 4, on or about October 15, 2011 in Marion County, State of Indiana, the following named defendant, [McClendon], did knowingly and forcibly resist, obstruct or interfere with Timothy Elliott, a law enforcement officer with the Indianapolis Metropolitan Police Department, while the [O]fficer was lawfully engage[d] in the execution of his duties as a law enforcement officer.
(Transcript pp. 5-6). McClendon admitted to the veracity of these allegations, but neither
the State nor McClendon made any references to McClendon’s firearm. The State
contends that although the factual basis did not provide any evidence that McClendon’s
conviction involved the misuse of his firearm, both the probable cause affidavit and the
State’s motion to amend the Information alleged that McClendon touched his firearm
while resisting law enforcement. However, we have previously noted that, absent a
defendant’s admission of the veracity of the contents of a probable cause affidavit or
5 Information, both are “mere accusations against a defendant and no evidence whatsoever
of his guilt.” Anderson v. State, 396 N.E.2d 960, 962 (Ind. Ct. App. 1979); see also Toan
v. State, 691 N.E.2d 477, 481 (Ind. Ct. App. 1998) (noting that a factual basis can be
established by a reading of the Information and an admission by the defendant that the
allegations are true). Accordingly, we will not find that the probable cause affidavit and
Information provided evidence that McClendon misused his firearm.
In addition, while the trial court heard testimony from Officer Elliot concerning
the firearm, it only did so after it had accepted McClendon’s guilty plea and sentenced
him. Thus, we cannot find that McClendon’s conviction was founded on Officer Elliot’s
testimony. The plain language of I.C. § 35-47-3-2(b) states that a trial court is not
required to return a firearm to a rightful owner who has been “convicted for the misuse of
firearms.” See I.C. § 35-47-3-2(b) (emphasis added). Because we cannot find any
evidence in the record that McClendon admitted to misusing a firearm as part of his
guilty plea and conviction, we conclude that he was not convicted for the misuse of a
firearm.
Alternatively, the State argues that the trial court’s decision to deny McClendon’s
motion was proper because he was an alcohol abuser and thus no longer entitled to
possess the firearm. Pursuant to I.C. § 35-47-2-7(b), “[i]t is unlawful for a person to sell,
give, or in any manner transfer the ownership or possession of a handgun to another
person who the person has reasonable cause to believe: . . . (3) is an alcohol abuser[].”
Under the Indiana Code, an “alcohol abuser” is “an individual who has had two (2) or
6 more alcohol related offenses, any one (1) of which resulted in conviction by a court or
treatment in an alcohol abuse facility within three (3) years prior to the date of the
application.” I.C. § 35-47-1-2. The State alleges that between McClendon’s conviction
for operating a vehicle while intoxicated in the instant case and a prior conviction for
public intoxication, McClendon has had two or more alcohol related offense.
We disagree with the State’s contention as the State did not prove that McClendon
has a prior alcohol related offense. During the hearing, the State told the trial court:
“[McClendon] does have a public intoxication arrest on his record which he was also, the
arrest was actually for failure to stop after an accident, I believe. There’s also a public
intoxication arrest on that.” (Tr. p. 11). However, the State made this statement during
its argument to the trial court and did not actually submit any evidence of the alleged
arrest. Moreover, the State’s use of the phrase “I believe,” does not convince us that the
State’s statements accurately reflect McClendon’s criminal history. (Tr. p. 11).
In sum, we find that the State did not prove that McClendon misused a
firearm for purposes of I.C. § 35-47-3-2(b) or is an alcohol abuser for purposes of
I.C. § 35-47-2-7(b). Accordingly, we conclude that the trial court abused its
discretion and was instead required to return McClendon’s firearm as stated in I.C.
§ 35-47-3-2(b). We reverse the trial court’s decision and remand with instructions
to return McClendon’s firearm.1
1 Because we find that the trial court abused its discretion under I.C. § 35-47-3-2(b), we will not address McClendon’s remaining claims.
7 CONCLUSION
Based on the foregoing, we conclude that the trial court abused its discretion in
denying McClendon’s motion requesting the return of his firearm. We remand with
instructions for the trial court to return McClendon’s firearm.
Reversed and remanded with instructions.
BAKER, J. and BARNES, J. concur