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Prior conviction counts in sentencing decision

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A prior drunk-driving conviction - reached pursuant to a state statute now repealed and recodified in a newer law - can be used in determining a person's sentence, the Indiana Court of Appeals ruled today.

A unanimous six-page ruling in Wayne Schenk v. State of Indiana, No. 82A01-0806-CR-301, affirms a judgment from Vanderburgh Superior Judge Robert Pigman. The case follows Schenk's arrest in November 2007 on a charge of operating a vehicle while intoxicated. He pleaded guilty as part of an agreement that specified he'd be sentenced to 18 months on an adult alcohol abuse probation service, though the court would determine if any portion of that sentence could be suspended in lieu of a minimum six-month period on home detention.

Finding that Schenk had two prior OWI convictions from 1988 and 2003, the trial court sentenced him to 18 months, with six months executed on home detention and 12 months on probation. Schenk appealed, arguing that the 20-year-old conviction was pursuant to Indiana Code 9-11-2, which was repealed in 1991 and made a part of the revised motor vehicle laws of IC 9-30-5.

Schenk argued the court misinterpreted IC 35-50-2-2(b)(4)(R), which states anyone committing a drunk driving offense with at least two prior unrelated convictions can only receive a partial sentence suspension and, in this case, that minimum was six months.

The appellate panel looked at the legislative intent and also precedent in Holt v. State, 638 N.E.2d 786,787 (Ind. 1994) that determined an uncodified savings clause preserved the prior OWI conviction under an older statute since repealed and recodified.

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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