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COA: enhancement isn't an ex post facto violation

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The enhancement of a man’s conviction of operating a vehicle while intoxicated because of a prior OWI conviction did not constitute an ex post facto violation, the Indiana Court of Appeals held Monday. The man argued it was a violation because his prior conviction occurred before the enactment of the enhancement statute.

Joseph Simmons appealed his conviction of Class C felony OWI and the eight-year sentence handed down by Jennings Circuit Judge Jon W. Webster. The truck driven by Simmons was pulled over after a person called police believing the occupants of the truck may be drunk. When police pulled over Simmons’ truck, he had trouble standing, smelled of alcohol and refused the field sobriety tests. When he attempted to do some of them at the police station, he was unable to complete them and even commented “I can’t do that sober.” He blew a blood alcohol content of 0.19.

Simmons faced several charges relating to drinking and driving and was convicted on all counts except for a charge of driving while suspended. The judge merged all the OWI convictions with the conviction of Class C felony OWI with a prior conviction for OWI causing death.

In Joseph Simmons v. State of Indiana, No. 40A05-1101-CR-10, Simmons argued that the enhancement of his OWI conviction to a Class C felony, which is based on his prior conviction for OWI causing death, is an ex post facto violation because the enhancement statute was enacted after his conviction for OWI causing death. The appellate judges found Simmons case to be controlled by Funk v. State, 427 N.E.2d 1081 (Ind. 1981), a case in which the defendant claimed that the general habitual offender statute was an unconstitutional ex post facto law.

“Simmons is not being re-punished for his prior crime, nor has the penalty for his prior crime been enhanced. He is simply being punished as a recidivist based upon his most recent act of OWI. And he is being punished under the version of the statute which was effective at the time he committed his most recent OWI,” wrote Judge Paul Mathias.

The judges found sufficient evidence to support his convictions and that his sentence is appropriate given his criminal history. The judge pointed to Simmons light-hearted banter with police while taking his sobriety tests, which they found troubling given that Simmons has been convicted of OWI causing death.

“When Simmons killed another person as a result of his drunken driving, it should have been a life-altering experience for him. However, Simmons seems to have not altered his behavior at all. Simmons is a recidivist, lethal drunk driver whose behavior has obviously been undeterred by his prior contact with the criminal justice system. His prior convictions, as they relate to the current offense, reflect very poorly on his character,” wrote Mathias.  
 

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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