Keith Bullock, Jr. v. State of Indiana and Indiana Bureau of Motor Vehicles (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Aug 10 2015, 8:31 am
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.
APPELLANT PRO SE ATTORNEYS FOR APPELLEES
Keith Bullock, Jr. Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Kristin Garn
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith Bullock, Jr., August 10, 2015
Appellant-Petitioner, Court of Appeals Case No.
49A02-1411-MI-833
v. Appeal from the Marion Circuit
Court
The Honorable Louis F. Rosenberg,
State of Indiana and Indiana Judge
Bureau of Motor Vehicles, The Honorable Mark A. Jones,
Master Commissioner
Appellees-Respondents.
Trial Court Cause No. 49C01-1401-
MI-1522
Bradford, Judge.
Case Summary
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[1] In 2003, Appellee-Respondent the Indiana Bureau of Motor Vehicles (“BMV”)
determined Appellant-Petitioner Keith Bullock, Jr., to be a habitual traffic
violator (“HTV”) and suspended his driver’s license for five years. In 2004,
Bullock was convicted of operating a vehicle after being designated an HTV,
and his driver’s license was accordingly suspended for life. Also in 2004, due to
an apparently erroneous court record, a conviction for operating a vehicle while
intoxicated (“OWI”) within five years of a prior OWI conviction was entered
on Bullock’s BMV driver record. In 2007, Bullock was convicted of operating a
vehicle after his license was forfeited for life. In 2014, Bullock petitioned to
have his driving privileges restored, which petition the trial court denied.
Bullock contends that (1) the trial court erred in denying his petition to reinstate
driving privileges, (2) the suspension notice for the erroneous OWI conviction
showed a five-year suspension while the erroneous abstract of judgment showed
a lifetime suspension, and (3) he was otherwise prejudiced by the erroneous
OWI conviction. We affirm.
Facts and Procedural History
[2] At some point in 2003, BMV designated Bullock an HTV by virtue of
accumulating more than ten qualifying traffic violations in a ten-year period.
As a result, BMV suspended Bullock’s driver’s license for five years, until
September 3, 2008. On March 18, 2004, Bullock was found guilty of operating
after having been designated an HTV, a Class D felony, which resulted in
Bullock’s license being suspended for life pursuant to Indiana Code section 9-
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30-10-16. Bullock’s BMV driver record, as of October 23, 2013, reflects that
Bullock was also convicted of OWI within five years of a prior OWI on March
18, 2004, in cause number 49F15-0309-FD-167876 (“Cause No. 167876”). In
February of 2007, Bullock was found guilty of Class C felony operating a
vehicle after his license was forfeited for life.
[3] On January 22, 2014, Bullock filed a pro se petition to restore his driving
privileges, alleging, inter alia, that he had never been convicted of OWI within
five years of a prior OWI in Cause No. 167876. On July 24, 2014, the trial
court that the abstract of judgment in Cause No. 167876 be amended to reflect
that Bullock had not been convicted of OWI within five years of a prior OWI.
On November 10, 2014, the trial court ordered that the erroneous OWI within
five years of a prior OWI conviction be removed from Bullock’s BMV driver
record but denied Bullock’s petition for reinstatement of driving privileges.
Discussion and Decision
I. Whether the Trial Court Erred in Denying Bullock’s
Petition to Reinstate his Driving Privileges
[4] Bullock contends that the trial court erroneously denied his petition to reinstate
his driving privileges. Appellees contend that Bullock does not fit criteria for
reinstatement as a matter of law.
Generally, Indiana Code section 9-30-10-14 provides means by
which a person whose driving privileges have been suspended for
life may petition a trial court in a civil action for rescission of the
suspension order and reinstatement of the person’s driving
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privileges, provided that certain conditions have been met. One
of these conditions is that the person “has never been convicted
of an offense under section 17 of this chapter.” I.C. § 9-30-10-
14(a)(3). Similarly, Indiana Code section 9-30-10-15 provides
that, before a trial court may order rescission of a lifetime
suspension order and reinstate a person’s driving privileges, the
court must find by clear and convincing evidence several
conditions, and again one of these conditions is “[t]hat the
petitioner has never been convicted of an offense under section
17 of this chapter.” I.C. § 9-30-10-15(b)(2). Section 17 of chapter
9-30-10 defines the crime of operating a motor vehicle while
privileges are forfeited for life[.]
Hazelwood v. State, 3 N.E.3d 39, 41 (Ind. Ct. App. 2014).
[5] As Bullock acknowledged in his petition to reinstate driving privileges, he has a
2007 conviction pursuant to Indiana Code section 9-30-10-17 for operating a
vehicle after his license was forfeited for life. Bullock’s undisputed conviction
pursuant to Indiana Code section 9-30-10-17 makes him ineligible for
reinstatement pursuant to sections 14 and 15. Bullock’s argument seems to be
that his conviction under section 17 “was dismissed from his driving record”
after serving three years of probation, Appellee’s App. p. 4, but the relevant
statutes make no exception for such circumstances. Bullock, as he admits, has
been convicted under section 17, which means that he is ineligible for
reinstatement of his driving privileges. The trial court did not err in denying
Bullock’s petition.
II. Notice-Based Argument
[6] Bullock seems to argue that he had not been given sufficient notice that he was
subject to lifetime suspension of driving privileges when was convicted of
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operating a vehicle while privileges are forfeited for life in 2007, the conviction
that now bars his reinstatement. As the State notes, however, Bullock did not
raise this argument in the trial court and so may not now raise it for this first
time in this court. “A party who raises an issue on appeal that was not raised in
the trial court waives that issue.” Frances Slocum Bank & Trust Co. v. Estate of
Martin, 666 N.E.2d 411, 413 (Ind. Ct. App. 1996), trans. denied.
III. Erroneous OWI Conviction
[7] Bullock maintains that he was prejudiced by the erroneous OWI conviction that
appeared on his BMV driver record, arguing that it was used to support the
imposition of the lifetime suspension that he can cannot now petition to
overturn. Even if the erroneous OWI conviction was used in this fashion,
however, Bullock’s argument fails to take into account the fact that his lifetime
suspension was also based on, and fully supportable by, his 2004 conviction for
operating a vehicle after being designated an HTV. Bullock’s BMV driver
record’s suspension information for that conviction lists the effective date of
Bullock’s associated suspension as “3/18/2004” and the length as
“Indefinite[.]” Appellee’s App. p. 150 (emphasis in original). As such, the
entry of an erroneous OWI conviction, and its associated appearance on
Bullock’s BMV driver record, can only be considered harmless error. “An error
is deemed harmless if it has not prejudiced the substantial rights of the [party].”
Boyd v. State, 650 N.E.2d 745, 748 (Ind. Ct. App. 1995). trans. denied.
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[8] We conclude that the trial court properly denied Bullock’s petition to reinstate
driving privileges. We further conclude that Bullock waived any notice-based
argument by failing to raise it in the trial court. Finally, any error that might
have been caused at any point by Bullock’s erroneous OWI conviction can only
be considered harmless.
[9] The judgment of the trial court is affirmed.
May, J., and Crone, J., concur.
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