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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. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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