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Felony can't be modified to misdemeanor 9 years later

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In a case of first impression, the Court of Appeals reversed and remanded with instructions a trial court’s modification of a criminal sentence from a Class D felony to a Class A misdemeanor nine years after the appellee-defendant pleaded guilty to operating a vehicle while intoxicated.

The state appealed the Noble Superior Court’s modification in State of Indiana v. Jeffrey Brunner, No. 57A04-1003-CR-121. Jeffrey Brunner raised the issue of whether the state’s appeal was authorized by law, and the state questioned whether the trial court erred in granting Brunner’s petition for relief.

Because the Court of Appeals found that Brunner’s request was a petition of post-conviction relief, it held the state could appeal the decision. However, today's  opinion noted the court hadn’t recognized Brunner’s request as a petition for PCR, and had not entirely followed the rules for a PCR. “But ‘the failure to enter specific findings of fact and conclusions of law is not reversible error,’” wrote Judge Edward W. Najam Jr.

As for the issue of the trial court’s error in granting a modification from a felony to a misdemeanor, the COA found the statute does allow for such a change.

However, “Indiana Code Section 35-50-2-7(b), on which the trial court relied in granting Brunner’s request, states: ‘if a person has committed a Class D felony, the court may enter judgment of conviction of a Class A misdemeanor and sentence accordingly.’ Applying that statute to these facts is a question of first impression and requires us to divine the intent of the legislature,” Judge Najam wrote regarding the amount of time that had passed between the conviction and the petition for PCR.

In considering the General Assembly’s intent in writing the statute, the Court of Appeals concluded this authority of the court was meant to apply “to the moment the court first enters its judgment of conviction and before the court announces the defendant’s sentence. That intent is made clear in the language of the statute itself, which describes a timeframe after the finding of a Class D felony but before the entry of sentence. … That intent is also supported by the differences in sentences available to persons convicted of Class D felonies and those convicted of Class A misdemeanors,” Judge Najam wrote.

In this case, Brunner was charged with operating a vehicle while intoxicated in November 1999. He pled guilty in August 2000. It was his third conviction of an OWI, which the state would note in its responses to Brunner’s requests to modify his felony to a misdemeanor.

Brunner sent a letter to the court Dec. 26, 2007, regarding the August 2000 conviction asking for the felony to be changed to a misdemeanor. The state filed its objection April 14, 2008.  Following the June 3, 2008, hearing on the matter, the court denied Brunner’s request.

Brunner refiled his letter Jan. 15, 2009, and the state again filed a response. There was no order granting or denying the request.

Brunner again filed a letter asking for the modification Sept. 16, 2009, and the state again filed a response Sept. 28, 2009. Following an Oct. 16 hearing, the court granted Brunner’s request.

“Again, the trial court’s decision on whether to enter judgment on a Class D felony or a Class A misdemeanor … may be made only at the moment of the original entry of the judgment of conviction,” Judge Najam concluded. “That did not happen here. Instead, more than nine years after the trial court entered its judgment of conviction against Brunner as a Class D felony, the trial court revisited that issue, vacated the Class D felony conviction, and imposed a Class A misdemeanor conviction. The trial court’s reliance on Section 35-50-2-7(b) to grant the requested relief was contrary to the plain meaning of the statute and an abuse of discretion.”
 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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