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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. Looks like 2017 will be another notable year for these cases. I have a Grandson involved in a CHINS case that should never have been. He and the whole family are being held hostage by CPS and the 'current mood' of the CPS caseworker. If the parents disagree with a decision, they are penalized. I, along with other were posting on Jasper County Online News, but all were quickly warned to remove posts. I totally understand that some children need these services, but in this case, it was mistakes, covered by coorcement of father to sign papers, lies and cover-ups. The most astonishing thing was within 2 weeks of this child being placed with CPS, a private adoption agency was asking questions regarding child's family in the area. I believe a photo that was taken by CPS manager at the very onset during the CHINS co-ocerment and the intent was to make money. I have even been warned not to post or speak to anyone regarding this case. Parents have completed all requirements, met foster parents, get visitation 2 days a week, and still the next court date is all the way out till May 1, which gives them(CPS) plenty of to time make further demands (which I expect) No trust of these 'seasoned' case managers, as I have already learned too much about their dirty little tricks. If they discover that I have posted here, I expect they will not be happy and penalized parents again. Still a Hostage.

  2. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  3. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  4. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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