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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A prior drunk-driving conviction - reached pursuant to a state statute now repealed and recodified in a newer law - can be used in determining a person's sentence, the Indiana Court of Appeals ruled today.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 Schenk appealed, arguing that the 20-year-old conviction was pursuant to Indiana Code 9-11-2, which was repealed in 1991 and made a part of the revised motor vehicle laws of IC 9-30-5.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1994) that determined an uncodified savings clause preserved the prior OWI conviction under an older statute since repealed and recodified.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. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

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