Jeremy Tyler Ferrell v. State of Indiana

Pursuant to Ind. Appellate Rule 65(E), the trial court and parties shall not take any action in reliance upon this Opinion until it is certified. FILED Oct 20 2026, 9:16 am CLERK Indiana Supreme Court Court of Appeals and Tax Court IN THE Court of Appeals of Indiana Jeremy Tyler Ferrell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff October 20, 2026 Court of Appeals Case No. 25A-CR-3215 Appeal from the Hancock Superior Court The Honorable Donald J. Davis, Judge Trial Court Cause No. 30D01-2209-F3-1552 Opinion by Judge DeBoer Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 1 of 15  Judges Felix and Scheele concur. DeBoer, Judge. Case Summary [1] In an earlier appeal, Jeremy Ferrell challenged his convictions for two counts of Level 3 felony aggravated battery with a habitual offender sentence enhancement. A panel of this Court reversed those convictions and Ferrell’s corresponding twenty-year aggregate sentence, finding the trial court abused its discretion in declining to instruct Ferrell’s jury on self-defense. Ferrell v. State, No. 23A-CR-2845, 2024 WL 2952496, at *3 (Ind. Ct. App. June 12, 2024) (mem.). The same trial judge presided over Ferrell’s retrial, at which Ferrell was convicted again. Ultimately, the judge imposed an aggregate twenty-two- year sentence—two years more than Ferrell received after the first trial. [2] In this appeal, Ferrell argues the imposition of a more severe sentence after retrial violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We find no due process violation and thus affirm Ferrell’s sentence. Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 2 of 15  Facts and Procedural History 1 [3] In the summer of 2022, Ferrell was an inmate at the Hancock County Jail. He shared a cell with two other inmates, Kirk Lonas and James Sachs. On August 24, an argument started when Ferrell asked Lonas for a bag of chips from the commissary items Lonas stored under his bunk and Lonas refused. In response, Ferrell said, “[W]hy do you got to be such a bitch[?]” Transcript Vol. 3 at 20. 2 A short time later, Ferrell approached Lonas’ bunk and kicked Lonas’ commissary items, scattering them around the cell. [4] Ferrell and Lonas gave slightly different accounts of what happened next. According to Lonas, after Ferrell kicked the commissary items, Lonas got out of his bunk, walked to the front of the cell, and pushed a call button which allowed the inmates to communicate with jail staff. Through an intercom, a staff member asked Lonas why he pressed the button. Before Lonas answered, Ferrell approached him to ask “if [he] was going to tell them that [Ferrell] kicked [his] commissary.” Id. at 22. Lonas said no and explained to Ferrell that he simply wanted to be let out of the cell. Ferrell then punched Lonas, striking his right eye and causing it to rupture. 1 We held a traveling oral argument in this case on September 30, 2026, at Indiana University East. We thank IU East for its hospitality and for giving us the opportunity to speak with students and community members over lunch. We commend the attendees for their thoughtful questions posed to the panel after the argument and express our gratitude to the local trial court judges and attorneys in attendance who participated in the question-and-answer period. Finally, we acknowledge the quality of counsel’s written and oral advocacy. 2 Our citations to the record refer to the proceedings from Ferrell’s second trial. Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 3 of 15 [5] According to Ferrell, Lonas was the initial aggressor. Ferrell claimed he accused Lonas of being a “snitch,” which “set [Lonas] off.” Id. at 177-78. Lonas pushed Ferrell, causing him to take a step backward. Ferrell then instinctively “jabbed” his fist in Lonas’ direction, inadvertently striking Lonas’ eye. Id. at 178. [6] Lonas suffered significant, life-altering injuries because of Ferrell’s punch. Lonas’ eyeball was ruptured beyond repair, blinding him in that eye. While he was in the medical unit recovering from the injury, Lonas contracted MRSA, a life-threatening infection that required Lonas to spend additional time in the hospital. The infection also prevented Lonas from receiving time-sensitive surgery to have a prosthetic implanted, and he consequently no longer has “a formed eye globe in the socket.” Id. at 25. [7] On September 30, 2022, the State charged Ferrell with two counts of Level 3 felony aggravated battery 3 and filed notice of intent to seek a habitual offender sentence enhancement. A two-day jury trial was held on August 22-23, 2023. While testifying in his own defense, Ferrell explained he kicked Lonas’ commissary items because Lonas was mocking his physical appearance. Ferrell contradicted Lonas’ testimony that Ferrell was the initial aggressor and claimed that Lonas pushed him before he punched Lonas. 3 Ind. Code § 35-42-2-1.5(1), (2) (2014). Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 4 of 15 [8] After the close of evidence, Ferrell’s counsel tendered a proposed self-defense jury instruction, which the trial judge rejected. The jury found Ferrell guilty of the two battery offenses, Ferrell waived jury trial on the habitual offender enhancement, and the trial court found that he was a habitual offender. At the sentencing hearing, the court merged Ferrell’s two battery convictions and sentenced him to an aggregate of twenty years in the Department of Correction. Ferrell appealed his convictions, arguing the trial court erred in rejecting the self-defense instruction. A panel of this Court agreed, reasoning the jury should have been allowed to weigh Ferrell’s and Lonas’ conflicting testimonies and determine whether Ferrell’s use of force was reasonable. Ferrell, 2024 WL 2952496, at *3. Accordingly, the panel reversed Ferrell’s convictions and remanded the case for a new trial. Id. [9] After his convictions were reversed, a different public defender was appointed to represent Ferrell, and that attorney sent discovery requests to the Hancock County Jail seeking information about Ferrell’s commissary account. Ferrell believed that by proving he had a well-funded commissary account, he could undermine Lonas’ claim that he asked for a bag of chips. The jail produced voluminous discovery in response to Ferrell’s requests, including recordings of phone calls Ferrell made shortly after punching Lonas. Those calls were not among the materials exchanged during discovery before Ferrell’s first trial. [10] In the calls, Ferrell discussed the altercation with Lonas. When speaking with his ex-girlfriend, Ferrell said Lonas was “a big dude, so [he] had to make it count,” apparently referring to the punch. Tr. Vol. 3 at 203. He also told her Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 5 of 15  that “it was hard not to laugh after” punching Lonas. Id. At one point, Ferrell quipped, “[O]ther people in here . . . have it worse than me,” and specified “Kirk Lonas” before laughing. Id. at 205. He jokingly expressed remorse for punching Lonas by instructing his ex-girlfriend “to write [Lonas] a get well soon card” before laughing again. Id. [11] In a call with a second woman, Ferrell asked her to “send word to [Sachs’ girlfriend] that we’re going to need him . . . to say I got pushed first.” Id. at 206. He explained, “[Lonas had] been picking on me all day. So, yeah, maybe I got up in his face just a little tad bit too close and maybe, yeah, I foresaw what was getting ready to happen, but he shouldn’t have put his hand on me.” Id. Then, in a call with a third woman, Ferrell said, On the bright side, the sergeant told me he couldn’t see nothing on camera. Maybe he did a solid for me and just erased it. . . . So when I do take it to court, I can’t get found guilty. This is my doing. This is my anger issues. Id. at 207. [12] Ferrell’s second jury trial was held on July 21-22, 2025. Ferrell again testified in his defense and provided an account of his altercation with Lonas similar to what he said at the first trial. On cross-examination, the State asked Ferrell about the jail calls, and he confirmed the authenticity of the statements described above. Ultimately, the second jury rejected Ferrell’s self-defense claim and found him guilty of the two counts of aggravated battery. The court later accepted Ferrell’s admission that he was a habitual offender. Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 6 of 15 [13] At the sentencing hearing, the trial court vacated one of the battery convictions, citing substantive double jeopardy concerns. The State asked the court to impose a longer sentence than Ferrell received after his first trial because he made Lonas endure a second trial, which had revealed “different . . . and worse evidence . . . .” Tr. Vol. 4 at 133. Ferrell argued the aggravating and mitigating factors should be unchanged and an increased sentence would improperly punish him for exercising his right to appeal his first convictions. [14] After hearing the parties’ arguments, the trial judge said he would not consider that Lonas had to testify twice, reasoning “Ferrell [was] entitled to his new trial . . . .” Id. at 135. The judge agreed with the State, however, that new evidence presented at the second trial painted Ferrell in a worse light: [W]e continued the matter before it went to trial, because [Ferrell] asked for some of the records over at the jail. . . . [U]ltimately, what that resulted in [was the production of the] phone calls . . . . .... My finding over that is . . . we did have factors that were different [from the first trial]. . . about how [Ferrell] felt after[ punching Lonas], and those were gained by the phone calls that were made afterwards that [he] testified about . . . . Id. at 151-52. The trial judge believed the jail calls showed Ferrell lacked remorse after the altercation, a fact unknown to the court when it made its original sentencing decision. It thus decided to impose two more years on the Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 7 of 15  habitual offender enhancement than it had after the first trial, resulting in an aggregate twenty-two-year sentence. [15] Ferrell now appeals. Discussion and Decision [16] Ferrell argues the imposition of a harsher sentence after his second trial violated the Due Process Clause of the Fourteenth Amendment. 4 While we generally review a trial court’s sentencing decision for an abuse of discretion, Owen v. State, 210 N.E.3d 256, 269 (Ind. 2023), reh’g denied, we consider federal constitutional claims de novo, Carr v. State, 274 N.E.3d 444, 452 (Ind. 2026). [17] Under the Due Process Clause, a state court may not “impos[e] a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside.” North Carolina v. Pearce, 395 U.S. 711, 723-24 (1969). To guard against the imposition of vindictive punishments, the Pearce Court expressed the following rule: [W]henever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon 4 In his opening brief, Ferrell also asserted that the sentence imposed after retrial violated several provisions of the Indiana Constitution, but he did not develop an argument to support that assertion. When asked during oral argument whether he waived his claims under the state constitution, see Irwin v. State, 229 N.E.3d 567, 572 n.4 (Ind. Ct. App. 2024), trans. denied, Ferrell’s counsel conceded she was not pursuing a state constitutional argument. That concession was well-taken, and we focus our analysis on Ferrell’s Fourteenth Amendment due process claim. Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 8 of 15  objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal. Id. at 726. As the Court later clarified, the imposition of harsher punishment after retrial gives rise to “a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” United States v. Goodwin, 457 U.S. 368, 374 (1982). [18] Here, Ferrell relies on Pearce to argue the two-year increase to his sentence must be “presumed to be vindictive.” Appellant’s Brief at 8. And he claims the State cannot rebut that presumption because “[t]here is no evidence of any identifiable conduct by Ferrell, after the date of the original sentencing, which would justify the harsher sentence.” Id. at 8 (emphasis added). Though the jail calls were revealed to the judge for the first time at the second trial, Ferrell argues they “were not made after the original sentencing hearing” and thus do not satisfy Pearce. Id. at 9. [19] But as the State correctly notes, the Court clarified the application of Pearce in Texas v. McCullough, 475 U.S. 134 (1986). There, McCullough was found guilty of murder, and the jury imposed a twenty-year sentence. Id. at 135-36. McCullough moved for a new trial based on prosecutorial misconduct, which the trial court granted. Id. at 136. During the new trial, two witnesses testified that McCullough, rather than any of his accomplices, slashed the victim’s Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 9 of 15  throat—a fact not established at the first trial. Id. McCullough was again found guilty but asked to be sentenced by the judge. Id. The judge imposed a fifty- year sentence, citing the testimony of the two witnesses and that the court “learned for the first time on retrial McCullough had been released from prison only four months before the later crime had been committed.” Id. The judge also explained that she thought the twenty-year sentence imposed by the jury had been too lenient. Id. [20] On appeal, the Texas Court of Criminal Appeals held “that under Pearce[,] vindictiveness must be presumed even though a jury had fixed punishment at the first trial and a judge had fixed it at the second trial.” Id. at 137. The Supreme Court granted certiorari and reversed that holding in a two-part opinion. Id. First, the Court held the Pearce presumption did not apply to McCullough’s circumstances, explaining, The Pearce requirements . . . do not apply in every case where a convicted defendant receives a higher sentence on retrial. . . . [W]e have restricted application of Pearce to areas where its “objectives are thought most efficaciously served,” 428 U.S. at 487 . . . Accordingly, in each case, we look to the need, under the circumstances, to “guard against vindictiveness in the resentencing process.” Chaffin v. Stynchcombe, 412 U.S. 17, 25, . . . (1973) (emphasis omitted). McCullough, 475 U.S. at 138. In McCullough’s case, the Court saw no need to apply the presumption because the trial judge’s granting of a new trial hardly suggested vindictiveness. Id. at 138-39. Moreover, because the jury, not the judge, imposed the first sentence, the Court reasoned “a sentence ‘increase’ Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 10 of 15  cannot truly be said to have taken place.” Id. at 140. And since the judge stated candidly on the record that she thought the jury’s original sentence was lenient, the Court found she “provide[d] an on-the-record, wholly logical, non[- ]vindictive reason for the sentence.” Id. [21] Second, the McCullough Court reasoned that even if the Pearce presumption applied, the trial judge’s sentencing statement overcame it. Id. at 141. The Court clarified Pearce “was never intended to describe exhaustively all of the possible circumstances in which a sentence increase could be justified.” Id. It gave the following hypothetical to illustrate its point: Suppose . . . that a defendant is convicted of burglary, a non- violent, and apparently first, offense. He is sentenced to a short prison term or perhaps placed on probation. Following a successful appeal and a conviction on retrial, it is learned that the defendant has been using an alias and in fact has a long criminal record that includes other burglaries, several armed robbery convictions, and a conviction for murder committed in the course of a burglary. None of the reasons underlying Pearce in any way justifies the perverse result that the defendant receive no greater sentence in light of this information than he originally received when he was thought to be a first offender. Id. (ellipses in original). In McCullough’s case, the Court held that foreclosing the trial judge from relying on facts adduced at the second trial when imposing a harsher sentence “would be wholly incompatible with modern sentencing standards.” Id. at 144. Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 11 of 15 [22] Here, the State concedes a presumption of vindictiveness arises under the circumstances but asserts the trial judge overcame the presumption by expressly disavowing vindictiveness and citing the jail-calls evidence as “objective information justifying the increased sentence.” Appellee’s Br. at 16. We agree that to the extent the Pearce presumption applies, the trial judge’s sentencing statement overcame it. [23] As an initial matter, our Supreme Court has held that [t]here is no presumption of vindictiveness even in cases where the court increases a defendant’s sentence over that of his or her original sentence. See [Alabama v. Smith, 490 U.S. 794, 799 (1989)]. The defendant must affirmatively show a “reasonable likelihood” that his or her sentence was increased due to “actual vindictiveness” on the part of the sentencer. Hicks v. State, 729 N.E.2d 144, 146 n.5 (Ind. 2000). Here, we see no reasonable likelihood the trial judge was motivated by vindictiveness, as he expressly declined at sentencing to recognize the burden of the second trial as an aggravating circumstance and said unequivocally that Ferrell was entitled to his second trial. But even if the trial judge was presumptively motivated by vindictiveness, he overcame that presumption under the second half of the McCullough analysis by explicitly citing the jail calls as evidence shedding new light on Ferrell’s offense and his character. [24] Even so, Ferrell claims allowing the State to rebut the presumption with evidence introduced only at the second trial would produce a “chilling effect” discouraging defendants from exercising the right to appeal. But this concern Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 12 of 15  was squarely addressed and rejected by the Supreme Court in McCullough, and we are bound by the Court’s decision: To be sure, a defendant may be more reluctant to appeal if there is a risk that new, probative evidence supporting a longer sentence may be revealed on retrial. But this Court has never recognized this “chilling effect” as sufficient reason to create a constitutional prohibition against considering relevant information in assessing sentences. We explained in Chaffin . . ., 412 U.S., at 29, . . . that “the Court [in Pearce] intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal.” We see no reason to depart from this conclusion. McCullough, 475 U.S. at 143 (alteration in original). [25] Finally, Ferrell claims the trial judge’s sentencing statement should be viewed with skepticism in light of comments he made “during a pretrial conference, [which] indicated that he disagreed with [the Court of Appeals’] decision in the previous appeal, and suggested he was annoyed about having to retry the case.” Appellant’s Reply Br. at 4. However, we see no indication from the judge’s comments (which were directed at Ferrell’s newly-appointed public defender) that he wanted to punish Ferrell for appealing his conviction: You know why [the case] came back right? If you put . . . evidence [of self-defense] in the trial, it’s not a problem giving the [self-defense] instruction. But no evidence was put into the trial. So I didn’t think it was appropriate. The Court of Appeals disagreed with me. That’s fine. I get remanded once in a while. That’s fine. I learned from that . . . . Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 13 of 15  Tr. Vol. 2 at 11. While these comments reflect the trial court’s disagreement with this Court’s previous decision, the judge also said he felt “nothing personal against Mr. Ferrell.” Id. Thus, contrary to Ferrell’s assertion, these off-the-cuff remarks bolster rather than undermine the trial judge’s explicit disavowal of vindictiveness at the sentencing hearing. 5 Conclusion [26] For these reasons, we affirm the trial court’s sentencing decision. [27] Affirmed. Felix, J., and Scheele, J., concur. ATTORNEY FOR APPELLANT Lisa Johnson Brownsburg, Indiana 5 At the oral argument, Ferrell’s attorney argued for the first time that Ferrell’s sentence violated Post- Conviction Rule 1(10)(b), which our Supreme Court has summarized as follows: [U]pon resentencing a defendant, a sentencing court cannot “impose a more severe penalty than that originally imposed unless the court includes in the record of the sentencing hearing a statement of the court’s reasons for selecting the sentence that it imposes which includes reliance upon identifiable conduct on the part of the petitioner that occurred after the imposition of the original sentence.” Hicks, 729 N.E.2d at 146 (quoting Ind. Post-Conviction Rule 1(10)(b)). But even assuming for the sake of argument that Post-Conviction Rule 1(10)(b) applies in this direct appeal, the violation of a Post-Conviction Rule is a wholly separate issue from the federal constitutional claim Ferrell raised in his briefs. It is well- settled that “issues are waived when raised for the first time at oral argument,” Harris v. State, 76 N.E.3d 137, 140 (Ind. 2017), and we decline to address Rule 1(10)(b) here as we lack adversarial briefing on the topic. Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 14 of 15 ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Indianapolis, Indiana Samuel J. Dayton Supervising Deputy Attorney General Indianapolis, Indiana Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana Court of Appeals of Indiana | Opinion 25A-CR-3215 | October 20, 2026 Page 15 of 15