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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. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  2. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  3. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

  4. His brother was a former prosecuting attorney for Crawford County, disiplined for stealing law books after his term, and embezzeling funds from family and clients. Highly functional family great morals and values...

  5. Wondering if the father was a Lodge member?

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