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INDIANAPOLIS — The Indiana Court of Appeals has upheld a prison sentence but reversed the restitution order for a man convicted of causing a death while operating a vehicle while under the influence of a controlled substance.

Madison County Circuit 1 Judge Angela Warner-Sims had sentenced Daniel Ellis to 12 years in prison and ordered him to pay $38,000 in restitution for the July 1, 2019, death of motorcyclist Danny Kinser, a 65-year-old veteran who had recently retired. Kinser’s death occurred on his granddaughter’s birthday, resulting in additional hardship for the family, according to the appeals opinion authored by Judge Melissa May.

“Ellis’ commission of the instant offense after multiple previous convictions for similar offenses reflects poorly on his character,” she wrote. “Thus, we cannot say Ellis’ sentence is inappropriate given his character.”

Ellis was southbound along a country road in an unidentified area of Madison County when he fell asleep causing the van he drove to cross the center line, striking Kinser in the northbound lane, according to the 12-page memorandum decision filed on March 12. According to the probable cause affidavit, Ellis had three children in the van with him at the time.

According to the Madison County Sheriff’s Department investigation in 2019, the 1997 Ford Windstar, driven by Ellis, 36, was traveling south on County Road 600 West near 500 North when it crossed the center line and struck Kinser who was riding a 2013 Harley-Davidson motorcycle.

Kinser was pronounced dead after being taken by helicopter to St. Vincent Hospital in Indianapolis. Ellis was taken to Community Hospital Anderson where a blood draw obtained under a search warrant determined he had been under the influence of methamphetamines or amphetamines, THC and a metabolite for cocaine, according to the opinion.

Ellis reportedly also fell asleep while being interviewed by a police officer at the hospital.

Ellis pleaded guilty June 15, 2020, to Level 4 felony causing death while operating a vehicle with a Schedule I or II controlled substance in his blood. The plea was made without the benefit of an agreement with the Madison County Prosecutor’s Office.

“Kinzer’s daughter testified at the hearing regarding the pain her father’s death caused her and her family,” the opinion said. The court document refers to the victim as Danny Kinzer.

The $38,000 restitution was for the Lifeline bill mentioned by Kinser’s widow at the Aug. 10, 2020, sentencing hearing.

“The State did not enter the Lifeline bill into evidence or produce testimony regarding what portion of the bill the Kinzers had paid,” the opinion said.

Ellis, who had three previous convictions for operating a vehicle while intoxicated, apologized to Kinser’s family at the hearing, according to the opinion.

“I am very sorry, and I never ever meant for anything to happen like this,” he said.

Still, Ellis argued at appeal that the maximum sentence he received was inappropriate because he was not one of the “worst offenders.” According to the Indiana Code, a Level 4 felony is punishable by a term of imprisonment between two and 12 years, with an advisory sentence of six years, and a fine up to $10,000.

“However, the test is not whether a worse offender could be imagined, but whether the defendant belongs to the class of offenses and offenders who deserve the maximum punishment,” the court countered.

While the appeals court ruled Ellis’ prison sentence appropriate, prosecutors failed to provide evidence of the actual costs incurred by Kinser’s family, including the medical helicopter, the appeals court said.

At question appears to be only the amount of restitution Ellis may owe, with appeals court directing the trial court to conduct a hearing to determine the actual amount of restitution due.

Follow Rebecca R. Bibbs on Twitter at @RebeccaB_THB, or call 765-640-4883.

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