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COA delves into grammar in reversing trial court

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The Indiana Court of Appeals issued three opinions Wednesday that dissect the grammar of a state statute in reversing a trial court’s decision regarding sentence enhancements.

In the three cases – State of Indiana v. James D. Eichorst, No. 71A03-1102-CR-105; State of Indiana v. Kevin Lee Traver, No. 71A04-1102-CR-131; and State of Indiana v. Donald Loren Wilson, No. 71A05-1102-CR-130 – the state appeals the St. Joseph Superior Court’s decision to not impose enhanced sentences for the defendants, who had previous convictions of operating while intoxicated. Indiana Code Section 9-30-5-3 provides for an enhancement of a charge under section 1 as follows: “[A] person who violates section 1 or 2 of this chapter commits a Class D felony if … the person has a previous conviction of operating while intoxicated that occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of this chapter[.]”

In Eichorst, the appeal contends that the wording of the statute means the date of the original act – not the conviction arising from that act – marks the beginning of the five-year period. In support of this claim, Eichorst argues that in the statute, “occurred within … five … years” modifies “operating while intoxicated,” instead of “conviction,” due to its proximity to the word “operating.” Eichorst further argues that “occurred” modifies “operating,” because a conviction cannot “occur.”

Judge Cale Bradford wrote the opinion for all three cases, pointing out that while the word “occurred” is closer to “operating” than to “conviction,” proximity alone does not support the conclusion that “occurred” modifies “operating” in the statute. As an example, he wrote, “Very few, if any, would read ‘we had a meal in France that was delicious and expensive’ and conclude that ‘delicious and expensive’ was describing ‘France.’”

Bradford wrote that the COA rejects the contention that a conviction cannot “occur,” citing Webster’s Third New International Dictionary, which defines “occur” as: to present itself, come to pass, take place or happen.

Finally, Eichorst argues that in sections 4 and 5 of I.C. 9-30-5, the Legislature’s use of slightly different language indicates an intent to treat prior OWI convictions differently than in section 3, because sections 4 and 5 do not include the words “that occurred.”

The COA held that “The presence of two arguably superfluous words in section 3 does not change the fact that the three sections, insofar as they refer to prior convictions, have essentially identical meanings.”

Applying the same logic to Traver and Wilson, the appeals court held that the state is required to prove that the defendant who has a previous OWI conviction that falls within the five-year period immediately preceding the commission of the instant offense is subject to an enhanced Class D felony sentence. The court remanded all three cases for proceedings consistent with its opinion.
 

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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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