Albert Burton v. State of Indiana , 2016 Ind. App. LEXIS 434 ( 2016 )

FILED
Dec 07 2016, 9:29 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John L. Tompkins Gregory F. Zoeller
Brown Tompkins Lory & Mastrian Attorney General of Indiana
Indianapolis, Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Albert Burton, December 7, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1602-CR-242
v. Interlocutory Appeal from the
Marion Superior Court
State of Indiana, The Honorable William J. Nelson,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G18-1411-F6-51820
Crone, Judge.
Case Summary
[1] Albert Burton pled guilty to operating a motor vehicle while driving privileges
are suspended as a level 6 felony under Indiana Code Section 9-30-10-16. The
version of the statute in effect when Burton committed the crime provided that
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a person convicted of a felony under the statute “forfeits the privilege of
operating a motor vehicle for life.” Ind. Code § 9-30-10-16(c). Because this
provision was repealed before he was sentenced, Burton argued that it did not
apply to him. The trial court disagreed but stayed entry of judgment to allow
Burton to perfect an interlocutory appeal on the issue. We affirm the trial court
and remand with instructions to enter judgment accordingly.
Facts and Procedural History
[2] On November 15, 2014, a police officer stopped Burton’s vehicle for a burned-
out headlight. The officer determined that Burton’s driving privileges were
suspended as a habitual traffic violator. The State charged Burton with
violating Indiana Code Section 9-30-10-16. When Burton committed the
offense, the statute read in relevant part as follows:
(a) A person who operates a motor vehicle:
(1) while the person’s driving privileges are validly suspended …
and the person knows that the person’s driving privileges are
suspended …
commits a Level 6 felony.
….
(c) 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. However, if judgment for conviction of a
Class A misdemeanor is entered for an offense under subsection
(a), the court may order a period of suspension of the convicted
person’s driving privileges that is in addition to any suspension of
driving privileges already imposed upon the person.
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Ind. Code § 9-30-10-16 (2014). Effective July 1, 2015, subsection (c) of the
statute was repealed.
[3] Sometime thereafter, Burton signed a plea agreement in which he agreed to
plead guilty as charged to a level 6 felony. The plea agreement contains the
following language: “Total sentence of 545 days. Credit time. Remainder
suspended on supervised probation. Defendant’s license suspension open to
argument. No AMS [alternative minimum sentencing, i.e., sentencing for a
class A misdemeanor instead of a level 6 felony].” Appellant’s App. at 23.
[4] On December 14, 2015, the trial court held a guilty plea and sentencing
hearing. Burton argued that his driving privileges could not be forfeited for life
under Indiana Code Section 9-30-10-16(c) because that subsection of the statute
had been repealed, and he further argued that the trial court could suspend his
driving privileges for a maximum of two and one-half years pursuant to a
statute that was enacted after he committed the offense. 1 The trial court
disagreed. See Tr. at 4 (“[T]he suspension is open to argument but if it’s a
felony it’s a lifetime suspension [sic].”). 2 The trial court accepted Burton’s
guilty plea and stated that it would enter judgment of conviction as a level 6
felony, impose a sentence of 545 days pursuant to the plea agreement, and
1
See Ind. Code § 9-30-16-1(c) (“Except as specifically provided in this chapter, for any criminal conviction in
which the operation of a motor vehicle is an element of the offense, or any criminal conviction for an offense
under IC 9-30-5, a court may suspend the person’s driving privileges for a period up to the maximum
allowable period of incarceration under the penalty for the offense.”) (eff. July 1, 2015, to June 30, 2016);
Ind. Code § 35-50-2-7(b) (setting maximum sentence for level 6 felony at two and one-half years).
2
“A suspension terminates driving privileges for only a definite period of years while a forfeiture terminates
driving privileges for life.” State v. Vankirk, 955 N.E.2d 765, 768 (Ind. Ct. App. 2011), trans. denied (2012).
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order “a lifetime driving license suspension [sic.]” Id. at 24. At Burton’s
request, the trial court stayed entry of judgment so that Burton could perfect an
interlocutory appeal on the lifetime suspension issue, which he did.
Discussion and Decision
[5] The gist of Burton’s argument is that the lifetime forfeiture provision of Indiana
Code Section 9-30-10-16(c) does not apply to him because it was repealed after
he committed the offense and before he was sentenced. 3 As a general rule, the
law in effect when a crime was committed is controlling. Collins v. State, 911
N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. There are exceptions to this
rule, 4 but Burton does not assert, let alone offer any cogent argument, that any
of those exceptions apply here. Therefore, we affirm the trial court’s
3
Burton frames the issue as whether the lifetime forfeiture provision involves an administrative forfeiture or a
judicial suspension of his driving privileges. He argues for the former and asserts that the Indiana Bureau
Motor of Vehicles lost its authority to impose a lifetime forfeiture when that portion of the statute was
repealed. Burton cites no authority for this assertion.
4
For example, “[t]he doctrine of amelioration allows a defendant to be sentenced under the more lenient
provisions of a statute which is in effect at the time of sentencing rather than be sentenced under a more
harsh statute in effect at the time the offense was committed.” Winbush v. State, 776 N.E.2d 1219, 1224-25
(Ind. Ct. App. 2002), trans. denied (2003). It is arguable whether the doctrine would apply to the lifetime
forfeiture provision of Indiana Code Section 9-30-10-16, which is a penalty imposed by operation of law and
is distinguished from a “criminal penalty” (such as a sentence) by the language of the statute itself. Cf.
Renfroe v. State, 743 N.E.2d 299, 301 (Ind. Ct. App. 2001) (stating that amelioration doctrine “[did] not
strictly apply” to case involving post-sentence education credit), opinion on reh’g. Burton makes no mention
of the amelioration doctrine, and we decline to decide the issue sua sponte absent briefing from both parties.
At the guilty plea hearing, Burton admitted that he had additional habitual traffic violator cases pending in
Johnson and Hamilton Counties, so he may have an opportunity to raise the issue in future proceedings.
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determination that the statute’s lifetime forfeiture provision applies to Burton
and remand with instructions to enter judgment accordingly. 5
[6] Affirmed and remanded.
Kirsch, J., and May, J., concur.
5
Burton does not assert that any misconception about the applicability of the lifetime forfeiture provision
rendered his guilty plea illusory.
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