Powell v. StatePowell v. State
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- Before:
- Debruler
Dissenting Opinion
dissenting to Denial of Transfer.
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,
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 The Court of Appeals affirmed in an unpublished opinion.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.
“A person who operates a vehicle while intoxicated commits a class A misdemeanor.”
“A person who violates section 1 or section 2 [9-11-2-1 or 9-11-2-2] of this chapter commits a Class C felony if the crime results in the death of another person.”
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 *484victim 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 proximate cause of the injury, and as in Drossos, did not address the precise claim appellant Powell now makes. In my view the implication of these cases, as uncovered by the State, is false.
Legislative intent is the keystone when determining the meaning of statutes. As I read the two sections of the driving while intoxicated statutes quoted above it is clear that driving conduct is proscribed and that injurious consequences are intended to increase the penalty for that conduct. The purpose of
Although appellant has asked this court to grant a new trial, his claim does not reach the integrity of his pleas of guilty, and thus that remedy is not appropriate. I would remand for the entry of a new judgment upon appellant’s pleas of guilty to include but a single conviction for driving while intoxicated or depending upon the factual basis, two convictions for reckless homicide, with sentence or sentences accordingly.
DICKSON, J., concurs.
Lead Opinion
PETITION FOR TRANSFER
PER CURIAM;Petition for transfer denied.*
Notes
Powell v. State (1988), Ind.App., 519 N.E.2d 235.