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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. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

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