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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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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