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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. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

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  3. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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