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Judges uphold sentence, but revise original opinion

February 1, 2013

The Indiana Court of Appeals granted a defendant and the state’s petitions for rehearing a case involving a plea agreement in order to correct a misstatement of the law.

In Travis Koontz v. State of Indiana, 29A05-1202-CR-77, the judges reaffirmed their original decision, which held Travis Koontz waived any claim of an illegal sentence by entering into a plea agreement that reduced his penal exposure. Koonz was charged with four offenses, but pleaded guilty only to driving while suspended, a Class A misdemeanor, and operating with an alcohol concentration equivalent of 0.08 or more, a Class C misdemeanor.

His sentenced included jail time and probation. When he violated his probation several months later, he filed a motion to correct erroneous sentence alleging the sentence was erroneous on its face because the combined term of imprisonment and period of probation exceeded a statutory one-year limitation.

In the original opinion, the judges misstated the law when writing, “[B]eing convicted of the per se offense rather than operating while intoxicated reduces Koontz’s exposure if he were to be arrested again for operating while intoxicated. See Ind. Code § 9-30-5-3 (stating that a person violating the operating while intoxicated or operating with an ACE of .08 or more commits a Class D felony if the person has a previous conviction of operating while intoxicated within five years).

“As both parties have pointed out, this is a misstatement of the law. Indiana Code section 9-30-5-2 defines ‘operating a vehicle while intoxicated’ separately from the per se offense defined in section 9-30-5-1. However, ‘previous conviction of operating while intoxicated’ is also a term defined by the Indiana Code, and it includes offenses under sections 9-30-5-1 through -9. Ind. Code § 9-13-2-130. Therefore, even a conviction of the per se offense would subject Koontz to a Class D felony charge if he were to commit another operating while intoxicated offense within five years of this conviction,” Chief Judge Margret Robb wrote. That language was stricken from the original opinion, but the judges still upheld their decision.

Judge John Baker, who originally dissented, again noted that he would reverse.

 

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