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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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