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Divided panel: OWI-causing-death retrial not double jeopardy

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A majority of an Indiana Court of Appeals panel upheld a man’s conviction and 14-year sentence for driving while intoxicated causing death, but a dissenting judge said the unusual case history that led to the outcome constituted double jeopardy.

Jeffrey Cleary was involved in a crash on a ramp leading to Interstate 65 near Hobart in 2010. His vehicle struck a service truck that was pushed into and killed Philip Amsden, who was changing a tire on a tractor-trailer at the time.

In Jeffrey A. Cleary v. State of Indiana, 45A03-1212-CR-518, Cleary was convicted of the Class B felony at a second trial. In the first trial, Cleary was convicted of misdemeanor driving while intoxicated charges but the jury deadlocked on the felony OWI causing death count. Cleary moved for a directed verdict, but Lake Superior Judge Thomas Stefaniak denied the motion and ordered a new trial.

On appeal, Cleary argued that the retrial violated his double-jeopardy protections, that a blood draw used to establish his blood alcohol content was improper and shouldn’t have been admitted, and that his sentence was inappropriate.

Judge Michael Barnes wrote for the majority that had judgment been entered on the lesser convictions after Cleary’s first trial, he would be barred from being retried. But judgment wasn’t entered.

“We do not agree with Cleary, however, that the trial court was required to enter a judgment of conviction, as opposed to ordering a new trial, upon the return of the jury’s verdict. Indiana Code Section 35-38-1-1(a) explains, ‘Except as provided in section 1.5 of this chapter, after a verdict, finding, or plea of guilty, if a new trial is not granted, the court shall enter a judgment of conviction,’” Barnes wrote for the majority joined by Judge Rudolph R. Pyle III.

“Quite simply, because a new trial was granted, the trial court was not required to enter a judgment of conviction,” Barnes wrote.

But Judge Terry Crone dissented, writing the trial court should have entered judgment after the first trial. “I find Cleary’s argument persuasive and believe that allowing the State to ‘keep taking a shot’ at a felony conviction against a defendant in Cleary’s position violates principles of fundamental fairness as well as the principles underlying the constitutional prohibition against double jeopardy,” Crone wrote.   

"Cleary’s double jeopardy rights were violated, and therefore I would reverse and remand with instructions to vacate his class B felony conviction and resentence him accordingly,” Crone wrote.
 

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  1. For many years this young man was "family" being my cousin's son. Then he decided to ignore my existence and that of my daughter who was very hurt by his actions after growing up admiring, Jason. Glad he is doing well, as for his opinion, if you care so much you wouldn't ignore the feelings of those who cared so much about you for years, Jason.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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