Eriс S. DEVORE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 55S01-9506-CR-783
Supreme Court of Indiana.
Nov. 22, 1995.
657 N.E.2d 740
In aggravation, we find that Respondent has previously been disciplined by the court for entering into an agreement with a client without proper independent advice and for such professional misconduct issued a public reprimand. In re Burns (1987), Ind., 516 N.E.2d 35.
In assessing an appropriate discipline in this case, we find that Respondent‘s conduct draws question as to his fitness as an attorney. Effective, professional representation does not include abusive, insulting, and threatening behavior. We are not unmindful that in the heat of conflict emotional outbursts are possible. However, the aggressive nature of the comments and acts made by Respondent in this case clearly goes beyond acceptable stаndards of professionalism. It was contrary the Oath of Attorneys which requires abstention from offensive personality; it undermines public confidence in and respect for the legal system; and it is prejudicial to the administration of justice. Respondent‘s professional misconduct warrants a period of suspension.
Therefore, in light of the violations of
Costs of this proceeding are assessed against Respondent.
Loretta Lauer, Gregory T. Lauer, Martinsville, for appellant.
Pamela Carter, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for appellee.
SHEPARD, Chief Justice.
This is the second of two appeals asking whether a conviction for operating a vehiclе while intoxicated which is enhanced from a class A misdemeanor to a class D felony under the provisions of
Two panels of the Court of Appeals split on this question. In this case, the court held that appellant Eric S. Devore could be sentenced under both statutes. We conclude otherwise.
I. Statement of Facts
In October 1993, the police arrested Devore for driving while intoxicated. The State charged him with operating a vehicle while intoxicated (OWI),
A jury found Devore guilty of operating a vehicle while intoxicated, as a class D felony,
Devore appealed his cause to the Indiana Court of Appeals and it affirmed. Devore v. State (1995), Ind.App., 650 N.E.2d 37. We grant Devore‘s petition for transfer.
Devore presents the following issues:
- Whether the trial court erred in enhancing Devore‘s punishment under both the OWI statute and the habitual substanсe offender statute;
- Whether there was sufficient evidence to support the trial court‘s judgment that Devore was a habitual substance offender;
- Whether there was sufficient evidence to support Devore‘s conviction for OWI; and,
- Whether Devore‘s sentence enhancements plаced him twice in jeopardy.
We answer the first issue affirmatively and thus reverse Devore‘s habitual substance offender adjudication. We thereforе need not address the second and fourth issues. We agree with the Court of Appeals that there was sufficient evidence to support Devore‘s OWI conviction and thus summarily affirm its opinion on that third issue.
II. Double Enhancement of Devore‘s Sentence
Devore alleges that the trial court erred by twice enhancing his penalty for operating a vehicle while intoxicated: first, when the
We explain today in Freeman v. State (1995), Ind., 646 N.E.2d 1021, that a defendant‘s sentence should not be twice enhanced through
III. Conclusion
Accordingly, we reverse Devore‘s enhancement as a habitual substance offender.
The judgment of the trial court is otherwise affirmed.
DeBRULER, DICKSON and SELBY, JJ., concur.
SULLIVAN, J., dissents with separate opinion.
ON PETITION TO TRANSFER
SULLIVAN, Justice, dissenting.
I believe the majority misreads lеgislative intent when it holds that a conviction for operating while intoxicated as a Class D felony cannot be enhanced under the habitual substanсe offender statute. Indeed, we held that such “sentences are permitted under the pertinent statutes” in Smith v. State (1989), Ind., 547 N.E.2d 845, 846.
I find the situation that gave rise to our opinion in Stanek v. State (1992), Ind., 603 N.E.2d 152, to be entirely different. There, the trial cоurt sought to impose a habitual offender enhancement under the general habitual offender statute,
I would affirm the trial court for the reasons set forth by Judge Najam for the Court of Appeals in this case, Devore v. State (1995), Ind.App., 650 N.E.2d 37, 8-12.