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Burnell v. State

Court of Appeals of Indiana

September 14, 2018

Chad Thomas Burnell, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Hamilton Superior Court The Honorable Gail Bardach, Judge Trial Court Cause No. 29D06-1612-F6-8964

          ATTORNEY FOR APPELLANT James R. Recker Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

          BAILEY, JUDGE.

         Case Summary

         [¶1] Chad T. Burnell ("Burnell") challenges his conviction, following a jury trial, of operating a vehicle while intoxicated, as a Level 6 felony, [1] and his status as a habitual vehicular substance offender.[2] He raises eight issues on appeal, which we consolidate and restate as: whether Burnell's trial counsel was ineffective.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] At around 12:30 a.m. on November 24, 2016, Hamilton County Sheriff's Deputy Jason Cramer ("Dep. Cramer") saw a vehicle driven by Burnell weave abruptly within its lane and cross the center line. Dep. Cramer activated his in-car camera and his emergency lights to conduct a traffic stop. Soon after Burnell pulled over, Dep. Cramer approached the vehicle and explained to Burnell that he had been stopped because he "went left of center." Tr. Vol. II at 201. Dep. Cramer could smell the odor of an alcoholic beverage coming from inside the vehicle. Dep. Cramer asked Burnell if he had been drinking, and Burnell stated that he had consumed three alcoholic beverages. Dep. Cramer then asked Burnell if he had his driver's license on him and if it was valid. Burnell told Dep. Cramer that he did not have his license with him and that, as far as he knew, his license was valid.

         [¶4] After noticing a knife in the back seat of Burnell's vehicle, Dep. Cramer asked Burnell to step out of the vehicle. Dep. Cramer asked a backup officer to pull the passenger out of the vehicle and make sure he did not have any weapons. When Burnell stepped out of the vehicle, Dep. Cramer conducted a pat down search for other weapons and found a knife in Burnell's pocket. After securing the knives, Dep. Cramer went back to his patrol car and discovered that Burnell's driver's license was suspended. Dep. Cramer came back to Burnell and asked if Burnell knew that his license was suspended. Burnell did not answer. Dep. Cramer then requested permission to search the car, and Burnell consented.

         [¶5] After searching the vehicle, Dep. Cramer performed a horizontal gaze nystagmus test on Burnell. Burnell exhibited six out of six clues and failed the test. Dep. Cramer did not conduct any more field sobriety tests on Burnell, because Burnell stated that he had nerve damage in his legs. Burnell subsequently agreed to take a breathalyzer; however, after three attempts, Burnell was unable to give a sufficient sample for the breathalyzer. Therefore, Dep. Cramer sought and obtained Burnell's consent to conduct a blood test, the results of which showed that Burnell had a blood alcohol concentration of 0.119 grams of alcohol per 100 milliliters of his blood.

         [¶6] On December 5, 2016, the State charged Burnell as follows: Count I, operating a vehicle while intoxicated, as a Class A misdemeanor;[3] Count II, operating a vehicle with an alcohol concentration of .08 or more, as a Class C misdemeanor;[4] Count III, operating a vehicle while intoxicated, as a Level 6 felony; Count IV, operating a vehicle with an alcohol concentration of .08 or more, as a Level 6 felony;[5] and Count V, driving while suspended, as a Class A misdemeanor.[6] The State also alleged that Burnell was a habitual vehicular substance offender.

         [¶7] At Burnell's September 19, 2017, jury trial, Dep. Cramer testified that when he approached Burnell he could smell the odor of an alcoholic beverage coming from the vehicle, that Burnell's speech was slurred and thick, and that Burnell's eyes were red, watery, and glassy. Dep. Cramer stated that he had to remind Burnell to place his vehicle in park when he asked Burnell to exit the vehicle and that Burnell failed the horizontal gaze nystagmus test. The toxicology results were also admitted into evidence. State's Ex. 5.

         [¶8] The jury found Burnell guilty 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. Burnell elected to forgo the enhancement phase of trial and admit his prior convictions alleged in count III for the purposes of elevating the Class A misdemeanor to a Level 6 felony and the habitual vehicular substance offender enhancement. The trial court merged counts I and II with count III. On October 6, 2017, the trial court sentenced Burnell to two and a half years for operating a ...


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