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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. 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."

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

  3. 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

  4. 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

  5. It's a capital offense...one for you Latin scholars..

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