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Ineffective counsel arguments in OWI appeal lack cogent reasoning

September 14, 2018

A man’s arguments on appeal from his drunken-driving conviction that he had ineffective assistance of counsel were rejected in substance and form by the Indiana Court of Appeals on Friday.

The appellate court affirmed Chad Thomas Burnell’s conviction of operating a vehicle while intoxicated as a Class A misdemeanor and operating a vehicle with an alcohol concentration of .08 or more as a Class C misdemeanor, and his adjudication as a habitual vehicular substance offender, elevating the Class A misdemeanor to a Level 6 felony.

A Hamilton County deputy stopped Burnell’s vehicle after midnight on Thanksgiving Day 2016 after it abruptly weaved and crossed the center line. The deputy smelled alcohol and determined Burnell had a suspended sentence. A breath test showed he had a blood-alcohol content of 0.119, well above the legal limit of 0.08 percent. He was convicted in a jury trial about a year ago.

On appeal, Burnell raised eight issues of ineffective assistance, but the panel found he “waived seven of the eight contentions he raises on appeal by failing to provide cogent argument and citation to legal authority in compliance with Indiana Appellate Rule 46(A)(8),” Judge L. Mark Bailey wrote for the panel.

The panel noted that some of Burnell’s “contentions are each only one sentence long — and incomplete sentences at that — with no citation to legal authority or the record.” In a footnote, Bailey wrote, “In fact, much of Burnell’s brief consists of incomplete sentences and other grammatical errors, making it difficult to even ascertain what his contentions are.”  

The panel found his remaining contention — that his counsel failed to interview or depose a Sheridan officer who Burnell said he’d spoken with about a half-hour before his arrest — was the only argument to consider in Chad Thomas Burnell v. State of Indiana, 29A02-1710-CR-2374.

“(W)hile Burnell may have provided the minimum amount of reasoning and citation to authority required as to his contention that his trial counsel was ineffective for failing to depose the Sheridan police officer, he failed to show how his trial counsel’s error prejudiced him, given the overwhelming evidence of his intoxication,” the panel concluded.

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