ILNews

Prior conviction counts in sentencing decision

Back to TopCommentsE-mailPrintBookmark and Share

A prior drunk-driving conviction - reached pursuant to a state statute now repealed and recodified in a newer law - can be used in determining a person's sentence, the Indiana Court of Appeals ruled today.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 Schenk appealed, arguing that the 20-year-old conviction was pursuant to Indiana Code 9-11-2, which was repealed in 1991 and made a part of the revised motor vehicle laws of IC 9-30-5.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1994) that determined an uncodified savings clause preserved the prior OWI conviction under an older statute since repealed and recodified.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. 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

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

  4. In my recent article in Indiana Lawyer, I noted that grass roots marketing -- reaching out and touching people -- is still one of the best forms of advertising today. It's often forgotten in the midst of all of today's "newer wave" marketing techniques. Shaking hands and kissing babies is what politicians have done for year and it still works. These are perfect examples of building goodwill. Kudos to these firms. Make "grass roots" an essential part of your marketing plan. Jon Quick QPRmarketing.com

  5. Hi, Who can I speak to regarding advertising today? Thanks, Gary

ADVERTISEMENT