Powell v. State
| Decision Date | 22 September 1988 |
| Docket Number | No. 22A01-8707-CR-162,22A01-8707-CR-162 |
| Citation | 528 N.E.2d 483 |
| Parties | Leland C. POWELL, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Appeal from Floyd Superior Court; Richard G. Streigel, Judge.
Dennis Brinkmeyer, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., Louis E. Ransdell, Deputy Atty. Gen., Indianapolis, for appellee.
PETITION FOR TRANSFER
Petition for transfer denied. *
Leland Powell drove his car while intoxicated, and while so doing entered a divided highway on the wrong side of the median and collided head-on with another car, killing two persons. He stands convicted upon his plea of guilty to two counts of operating a vehicle while intoxicated, I.C. 9-11-2-2, for which he received consecutive eight year terms under I.C. 9-11-2-5, based upon the two deaths. He also stands convicted upon his plea of guilty to two additional counts of reckless homicide, I.C. 35-42-1-5, based upon the same two deaths; however, the court gave no sentences on these two latter convictions.
Powell appealed from this sentence, alleging (1) that the sentencing court had failed to make a sufficient statement of aggravating circumstances justifying the enhancement, and (2) that more than a single sentence for the two counts of driving while intoxicated would be illegal. The Court of Appeals affirmed in an unpublished opinion. I would grant transfer upon the basis of the latter claim and remand for a new sentencing hearing.
Appellant's claim is based upon the the statutes defining the crime of operating while intoxicated. I.C. 9-11-2-2 and I.C. 9-11-2-5 provide in salient part as follows:
Appellant argues that his unlawful conduct of driving while intoxicated constituted but a single violation of the above statute, even though two deaths were caused by it, while the State responds that the death of each victim created separate and distinct offenses.
According to the State several opinions carry the implication that its view of the operating statute should prevail. In Drossos v. State (1982), Ind.App., 442 N.E.2d 1, a single collision resulted in three deaths, and Drossos was convicted twice for each death, once under the driving while intoxicated statute and once under the reckless homicide statute. The Court of Appeals set aside the three reckless homicide convictions because of insufficiency of evidence, but permitted the three convictions for driving while intoxicated to stand. In Micinski v. State (1986), Ind., 487 N.E.2d 150, this court found the evidence sufficient to support two convictions for driving while intoxicated where two pedestrians were struck and seriously injured. There however this court was focused upon the nature of the causal relationship between intoxication and injury and concluded that the State need not prove that the intoxication was a direct and...
To continue reading
Request your trial
-
Gibson v. State
...or witness credibility, a reasonable trier of fact could conclude that defendant was guilty beyond a reasonable doubt." Powell v. State (1988), Ind., 528 N.E.2d 483. The rule is that the mere unexplained, exclusive possession of recently stolen property will sustain a conviction of theft an......
-
Powell v. State
...could stand based upon the single accident regardless of how many lives were taken. Powell v. State (1988), Ind., 528 N.E.2d 483 (DeBruler, J., and Dickson, J., dissenting from denial of transfer). Because our supreme court was evenly divided upon the question of whether to accept transfer,......