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A prior drunk-driving conviction - reached pursuant to a state statute now repealed and recodified in a newer law - can be used in determining a person's sentence, the Indiana Court of Appeals ruled today.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 Schenk appealed, arguing that the 20-year-old conviction was pursuant to Indiana Code 9-11-2, which was repealed in 1991 and made a part of the revised motor vehicle laws of IC 9-30-5.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1994) that determined an uncodified savings clause preserved the prior OWI conviction under an older statute since repealed and recodified.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