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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. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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