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COA upholds attorney's felony conviction

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The Indiana Court of Appeals affirmed the denial of an attorney's motion to have his prior drunk-driving conviction reduced to a misdemeanor because the attorney was arrested again for drunk driving before completing his probation.

In James R. Recker II v. State of Indiana, No. 49A04-0805-CR-262, James Recker was given probation and 180 hours of community service after pleading guilty to operating a vehicle while intoxicated as a Class D felony in March 2006. As part of the agreement, the trial court could enter the conviction as a misdemeanor after Recker completed his probation, which was set to expire in February 2007.

For his community service, Recker worked pro bono at various legal organizations. When his probation was set to expire, he still hadn't completed all the necessary hours. His probation was extended to give him time to complete them. At a hearing in December 2007, Recker argued he had finished the hours but Legal Services Organization hadn't reported all of his hours yet. Another hearing was set for Jan. 22, 2008.

Before that hearing, Recker was arrested and charged with operating a vehicle while intoxicated. At a new hearing in February 2008, he moved for his original conviction to be reduced because he completed community service prior to December 2007 and therefore wasn't on probation when he was arrested again. The trial court denied his motion.

Examining the applicable statute in this case, Indiana Code Section 35-38-1-1.5, the Court of Appeals unanimously affirmed the denial of Recker's motion. A trial court isn't required to convert a judgment to a Class A misdemeanor if it finds the defendant violated a condition set by the court or if the period of probation expired prior to the defendant successfully completing the conditions, wrote Judge James Kirsch. Recker violated two provisions of the statute: he didn't successfully complete the ordered 180 hours of community service before his probation originally expired in February 2007 and received several extensions in which to do so. As a result, the trial court wasn't required to convert his conviction, wrote Judge Kirsch.

Recker's drunk-driving arrest while on probation also prevented the trial court from reducing his earlier conviction, per I.C. Section 35-38-1-1.5(c).

The Indiana Supreme Court suspended Recker from the practice of law in Indiana March 13, 2009, pending further order from the high court or final resolution of any resulting disciplinary action, due to his being found guilty of operating a vehicle while intoxicated as a Class D felony with a habitual substance offender enhancement.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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