Eric Allen v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be May 26 2016, 8:42 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric Allen, May 26, 2016
Appellant-Defendant, Court of Appeals Case No.
79A04-1506-CR-601
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Raymond Kirtley,
Appellee-Plaintiff Senior Judge
Trial Court Cause No.
79C01-1410-FC-17
Bailey, Judge.
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Case Summary
[1] Eric Allen (“Allen”) appeals his conviction for Operating a Motor Vehicle
While Privileges Are Forfeited for Life, a Class C felony,1 raising the sole issue
of whether there was sufficient evidence to support his conviction. We affirm.
Facts and Procedural History
[2] At approximately 3:30 a.m. on June 21, 2014, Tippecanoe County Sheriff
Department Deputy Alexander Feistel (“Deputy Feistel”) and Sergeant Robert
Hainje (“Sergeant Hainje”) were on patrol in a marked squad car in Lafayette,
Indiana when they saw three vehicles quickly turn from 18th Street onto the
Veteran’s Memorial Parkway. As the cars headed east, they appeared to be
racing. Deputy Feistel activated his radar and clocked the second car, a late
model Chevrolet Caprice, going 68 m.p.h. and the third car, a Cadillac
Escalade, going 71 m.p.h. in the 35 m.p.h. zone. The Escalade passed the
Caprice, then both turned south onto Concord Road as the lead car continued
on Veteran’s Memorial Parkway.
[3] The officers pursued the Caprice and Escalade onto Concord, where they
observed the Caprice weaving and swerving over the center line. Deputy
Feistel activated his emergency lights when the cars turned east onto Chilton
1
Ind. Code § 9-30-10-17 (Supp. 2013). This offense is now a Level 5 felony. We refer to the version of the
statute in effect at the time Allen committed the offense.
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Drive, the entrance to a residential subdivision. The Escalade turned left and
stopped in an alley next to 2576 Chilton Drive. The Caprice also pulled into
the alley, stopping just ahead of the Cadillac.
[4] Both officers exited the squad car. From his vantage point, Sergeant Hainje
observed an African American man with facial stubble sitting low in the driver’s
seat of the Caprice. As Deputy Feistel approached the Caprice, the car crept
forward. Deputy Feistel yelled at the driver to stop while flashing a light at the
side mirror. The Caprice paused, then turned right and accelerated into the
alley running behind the houses and parallel to Chilton Drive. Deputy Feistel
returned to his car and attempted to cut off the Caprice at the next intersection.
He did not intercept the car, but shortly after saw a person on foot running at
full speed southbound across Chilton.
[5] Meanwhile, Sergeant Hainje called for backup and gave descriptions of the
Caprice and driver. Sergeant Hainje then interviewed the occupants of the
Escalade, who indicated that Allen had been with them at Aces Pub on 18th
Street and left in the Caprice when they left in the Escalade. A few minutes
later, a responding officer located the unoccupied Caprice parked in the
driveway behind 2708 Chilton Drive. Sergeant Hainje walked over and
observed in the dew-covered grass a single set of footprints leading southbound
away from the car and across Chilton into a weedy empty lot.
[6] At approximately 3:50 a.m., Deputy Nathan Beever (“Deputy Beever”), who
had also responded to the call for backup, encountered a man matching the
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suspect’s description, later identified as Allen, walking just south of Chilton
Drive. Allen’s shoes were wet and he had grass, burs, and weeds on his clothes
and shoes. He was sweating heavily and showed signs of intoxication,
including a strong alcohol odor on his breath, red watery eyes, slurred speech,
and unstable balance. He admitted that he had been drinking at Aces Pub, but
denied that he had been driving. He also stated that he lived with his sister at
2576 Chilton Drive. The Caprice was registered to his sister at that address.
[7] Deputy Beever transported Allen to the Tippecanoe County Sherriff’s Office to
take a sobriety test. Allen refused. Deputy Beever obtained a warrant for a
blood draw, and Allen was taken to the hospital to complete it. The lab results
showed a blood alcohol concentration of 0.19 percent.
[8] On October 31, 2014, Allen was charged with Operating a Motor Vehicle
While Privileges Are Forfeited for Life, a Class C felony; Resisting Law
Enforcement, as a Class D felony;2 and Operating a Vehicle While Intoxicated,
as a Class A misdemeanor3 (“Count 3”). The State also alleged Allen was a
Habitual Substance Offender.4 On December 29, 2014, the trial court granted
2
I.C. § 35-44.1-3-1(b)(1)(A).
3
I.C. § 9-30-5-2(b).
4
I.C. § 35-50-2-10.
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the State’s motion to add a charge of Operating a Vehicle with At Least Fifteen-
Hundredths (0.15) Gram of Alcohol, a Class A misdemeanor5 (“Count 5”).
[9] A bifurcated jury trial was conducted on April 15 and 16, 2015. During phase
two, the State introduced into evidence Jasper Circuit Court records showing
that on November 13, 2007, under cause number 37C01-0705-FD-268, Allen
agreed to plead guilty to Operating a Vehicle as Habitual Traffic Violator, a
Class D felony,6 and that as part of that plea agreement, his driving privileges
would be suspended for life. The Jasper Circuit Court accepted the plea
agreement and entered judgment of conviction on December 18, 2007. The
State also introduced a certified copy of Allen’s driving record, which included
the Jasper Circuit Court’s December 18, 2007 order, as well as a December 26,
2007 nunc pro tunc order stating that the court “on its own motion, now finds
that this Court’s order of December 18, 2007, is erroneous in that it fails to
reflect that [Allen’s] driver’s privileges are suspended for his lifetime” and
corrected the order to include the suspension. (Exhibit 6.)
[10] At the conclusion of trial, Allen was found guilty of all charges and the trial
court entered judgments of conviction and adjudicated Allen a habitual
substance offender. On May 11, 2015, the trial court held a sentencing hearing
5
I.C. § 9-30-5-1(b).
6
I.C. § 9-30-10-16(a)(1).
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and imposed a total aggregate sentence of fourteen years executed in the
Indiana Department of Correction.
[11] On June 10, 2015, Allen filed a notice of appeal. On July 27, 2015, Allen, pro
se, filed a motion to correct erroneous sentence, and the State responded with its
own motion to correct error on September 8, 2015.7 The court held a hearing
on the motions, and on November 12, 2015, issued an order merging Counts 3
and 5, and imposing a modified aggregate sentence of six years executed in the
DOC followed by eight years to be served in the Tippecanoe County
Community Corrections.
[12] Allen now appeals.
Discussion and Decision
[13] Allen challenges only the sufficiency of the evidence to support his conviction
for operating a motor vehicle while privileges are forfeited for life. Our
standard of review for sufficiency of the evidence claims is well settled. We
consider only the probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the
credibility of witnesses or reweigh evidence. Id. We will affirm the conviction
7
Meanwhile, the Tippecanoe County Clerk filed a notice of completion of transcript on September 23, 2015,
and this Court acquired jurisdiction on that date pursuant to Indiana Appellate Rule 8. On October 7, 2015,
Allen filed with this Court a motion to stay consideration of appeal so that the trial court could address the
motions to correct error. On October 16, 2015, this Court granted Allen’s motion to stay, ordered the trial
court to rule on the motions to correct error within thirty days, and ordered Allen to submit a status report
within forty-five days.
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unless “no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270
(Ind. 2000)). “The evidence is sufficient if an inference may reasonably be
drawn from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751
N.E.2d 331, 334 (Ind. Ct. App. 2001)).
[14] Pursuant to Indiana Code section 9-30-10-17(a), a person who operates a motor
vehicle after the person’s driving privileges are forfeited for life under Indiana
Code section 9-30-10-16 commits a Class C felony. The State charged that, on
or about June 21, 2014, Allen “did operate a motor vehicle after his driving
privileges were forfeited for his lifetime under Indiana Code 9-30-10-16
pursuant to a conviction in the Jasper Circuit Court, Jasper County, State of
Indiana under cause number 37C01-0705-FD-268, on or about December 18,
2007[.]” (App. 121.)
[15] At trial, the State introduced ample evidence that Allen was driving a Chevrolet
Caprice through the streets of Lafayette in the early morning hours of June 21,
2014. The State also introduced into evidence Jasper Circuit Court records and
Allen’s driver’s record, both of which showed that Allen was convicted in the
Jasper Circuit Court on December 18, 2007 of a violation of Indiana Code
section 9-30-10-16(a). The statute defining that offense also provides: “In
addition to any criminal penalty, a person who is convicted of a felony under
subsection (a) forfeits the privilege of operating a motor vehicle for life.” I.C. §
9-30-10-16(c). Consistent with this provision, Allen’s plea agreement provided
that his driving privileges would be forfeited for his lifetime. The Jasper Circuit
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Court’s nunc pro tunc order further clarified that Allen’s driving privileges were,
indeed, forfeited for life. There was sufficient evidence to support Allen’s
conviction.
[16] Allen, however, argues there was insufficient evidence to support his conviction
because he did not have knowledge that his driving privileges were forfeited for
life. As this Court has previously held, “[k]nowledge of a lifetime forfeiture is
not an element of Indiana Code § 9-30-10-17, so proof of knowledge is not
necessary to sustain a conviction.” Pillow v. State, 986 N.E.2d 343, 345 (Ind. Ct.
App. 2013) (citing Brock v. State, 955 N.E.2d 195, 205 (Ind. 2011), cert. denied).
In this way, Section 9-30-10-17 operates as a strict liability offense with no
knowledge requirement. Brock, 955 N.E.2d at 205.
[17] Nevertheless, Allen contends that because a violation of Section 9-30-10-17 is a
Class C felony carrying a sentencing range of two to eight years, I.C. § 35-50-2-
6, the imposition of strict liability to the offense violates his due process rights
guaranteed under the Fourteenth Amendment to the U.S. Constitution.8 Allen
relies on U.S. v. Wulff, 758 F.2d 1121 (6th Cir. 1985), in which the Sixth Circuit
Court of Appeals affirmed a district court’s finding that a felony conviction
under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., violated the due
process clause of the Fifth Amendment because the felony offense did not
require proof of scienter, was not known to the common law, and the penalty
8
“[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]” U.S.
Const. amend. XIV, § 1.
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was severe and would result in irreparable damage to one’s reputation. Wulff,
758 F.2d at 1122. There, the court found that a felony conviction and
maximum sentence of two years or a $2000 fine, or both, constituted a
“substantial” penalty carrying risk of reputation damage. Id. at 1125.
[18] Assuming, without deciding, that Allen’s as applied challenge to the statute
would be otherwise meritorious, Allen’s argument ultimately is unavailing
because there is evidence that Allen had knowledge that his license was
forfeited for life. Certified copies of Jasper Circuit Court records show that
Allen signed a plea agreement stating that his “driving privileges will be
suspended for his lifetime.” (Exhibit 7.) The circuit court accepted his plea
agreement and entered judgment of conviction on December 18, 2007.
Consistent with the plea agreement, the lifetime suspension of his driving
privileges was noted in the court’s December 26, 2007 nunc pro tunc order and
the abstract of judgment, both of which were included in Allen’s driver’s record.
Further, a table in Allen’s driver’s record lists at least three separate “indefinite”
suspensions (including the December 18, 2007 suspension) and shows that
notice was mailed to Allen on January 28, 2005, January 8, 2008, and January
10, 2008. (Exhibit 6.) In light of this evidence of knowledge, we cannot
conclude that Allen was denied due process of law when he was convicted of
operating a motor vehicle while privileges are forfeited for life.
Conclusion
[19] There was sufficient evidence to support Allen’s conviction.
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[20] Affirmed.
Bradford, J., and Altice, J., concur.
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