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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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