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Judges uphold sentence, but revise original opinion

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The Indiana Court of Appeals granted a defendant and the state’s petitions for rehearing a case involving a plea agreement in order to correct a misstatement of the law.

In Travis Koontz v. State of Indiana, 29A05-1202-CR-77, the judges reaffirmed their original decision, which held Travis Koontz waived any claim of an illegal sentence by entering into a plea agreement that reduced his penal exposure. Koonz was charged with four offenses, but pleaded guilty only to driving while suspended, a Class A misdemeanor, and operating with an alcohol concentration equivalent of 0.08 or more, a Class C misdemeanor.

His sentenced included jail time and probation. When he violated his probation several months later, he filed a motion to correct erroneous sentence alleging the sentence was erroneous on its face because the combined term of imprisonment and period of probation exceeded a statutory one-year limitation.

In the original opinion, the judges misstated the law when writing, “[B]eing convicted of the per se offense rather than operating while intoxicated reduces Koontz’s exposure if he were to be arrested again for operating while intoxicated. See Ind. Code § 9-30-5-3 (stating that a person violating the operating while intoxicated or operating with an ACE of .08 or more commits a Class D felony if the person has a previous conviction of operating while intoxicated within five years).

“As both parties have pointed out, this is a misstatement of the law. Indiana Code section 9-30-5-2 defines ‘operating a vehicle while intoxicated’ separately from the per se offense defined in section 9-30-5-1. However, ‘previous conviction of operating while intoxicated’ is also a term defined by the Indiana Code, and it includes offenses under sections 9-30-5-1 through -9. Ind. Code § 9-13-2-130. Therefore, even a conviction of the per se offense would subject Koontz to a Class D felony charge if he were to commit another operating while intoxicated offense within five years of this conviction,” Chief Judge Margret Robb wrote. That language was stricken from the original opinion, but the judges still upheld their decision.

Judge John Baker, who originally dissented, again noted that he would reverse.

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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