Preview:

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: CHRISTOPHER A. CAGE Anderson, Indiana

FILED
Jun 30 2008, 9:21 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ARTHUR THADDEUS PERRY Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
RICK G. GWINN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 33A01-0801-CR-26

APPEAL FROM THE HENRY SUPERIOR COURT The Honorable Bob A. Witham, Judge Cause No. 33D02-0703-FD-74

June 30, 2008 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Rick G. Gwinn appeals his convictions of operating a vehicle while intoxicated, driving while suspended as an habitual traffic violator, and criminal mischief, as well as the determination he is an habitual substance offender. He argues he received ineffective assistance of counsel. We affirm. FACTS AND PROCEDURAL HISTORY On the evening of March 23, 2007, John and Kathy Frazier were home watching television when they heard a car engine revving. The Fraziers went outside and saw a car stuck in the middle of their neighbor's yard. The driver was rocking the car back and forth, trying to get out of the yard. Kathy called the police, and the Fraziers watched the vehicle while the police were en route. Gwinn exited the car "wobbling" and

"staggering." (Tr. at 86, 96.) The Fraziers watched Gwinn begin walking along Grand Avenue. John followed him from a distance. Officer Brad Flynn was dispatched to the scene. On his way, the dispatcher told him the driver had left on foot. John flagged down Officer Flynn and told him he had just passed the driver on Grand Avenue. Officer Flynn had noticed Gwinn as he drove past, and he described him to the dispatcher. He then went back to Grand Avenue to look for Gwinn, but he was no longer on the street. Officer Flynn parked his car and began looking in back yards. He saw Gwinn walking toward Village Pantry. Officer Ty Terrell went to Village Pantry and found Gwinn sitting in a truck. Officer Terrell approached Gwinn and told him he was "looking for a subject that matched his description in the area who was involved in an accident with a vehicle." (Id. at 111.) Officer Terrell asked him if he had any keys, and Gwinn said he did not. Officer 2

Terrell asked Gwinn to exit the truck. He conducted a pat-down and found a set of keys. Officer Flynn arrived and identified Gwinn as the man he had seen walking on Grand Avenue. When Officer Flynn spoke to Gwinn, he noticed Gwinn smelled strongly of alcohol, his balance was unsteady, his speech was slurred, and his eyes were bloodshot. Officer Terrell was able to start the car using the keys he found in Gwinn's pocket. Officer Flynn took Gwinn back to the scene of the accident to see if the Fraziers could identify him. They could not positively identify Gwinn, but they said he resembled the man they had seen. A blood test revealed Gwinn's blood alcohol level was .24%. Gwinn was charged with operating while intoxicated as a Class A misdemeanor and a Class D felony;1 operating a vehicle with elevated blood or breath alcohol concentration, a Class A misdemeanor;2 public intoxication, a Class B misdemeanor;3 operating while suspended as an habitual traffic violator, a Class D felony;4 criminal mischief, a Class B misdemeanor;5 and being an habitual substance offender.6 Gwinn was found guilty as charged. The trial court entered judgment of conviction on operating while intoxicated as a Class D felony, operating while suspended as an habitual traffic violator, and criminal mischief and imposed a sentence of ten years, including a 7.5-year habitual substance offender enhancement.

1 2

Ind. Code

Download Rick G. Gwinn v. State of Indiana.pdf

Indiana Law