Mark Kevin Liston v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jun 12 2013, 9:02 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
T. EDWARD PAGE GREGORY F. ZOELLER
Thiros and Stracci, PC Attorney General of Indiana
Merrillville, Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARK KEVIN LISTON, )
)
Appellant-Defendant, )
)
vs. ) No. 45A05-1207-CR-385
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Jesse M. Villalpando, Judge
Cause No. 45D12-0306-FD-43
June 12, 2013
OPINION ON REHEARING - NOT FOR PUBLICATION
SHARPNACK, Senior Judge
Mark Liston petitions for rehearing following our dismissal of his appeal for lack
of jurisdiction in Liston v. State, No. 45A05-1207-CR-385 (Ind. Ct. App. Mar. 25,
2013).1 We grant rehearing, conclude his appeal is from a final judgment, and reverse
the trial judge’s rescission of the referee’s order granting him post-conviction relief.
In 2003, the State charged Liston with multiple operating while intoxicated
offenses. Liston pleaded guilty to an amended charge of Class B misdemeanor reckless
driving in exchange for dismissal of the other charges. He completed his sentence in
2004.
Six years later, Liston filed a petition for post-conviction relief, claiming the trial
court did not properly advise him at the time of his plea that his conviction could be used
in the future to support a habitual traffic violator finding. At a hearing before Referee
Ann Likens in June 2010, the parties filed an agreement stipulating that Liston was
entitled to post-conviction relief and that his conviction should be vacated and removed
from his driving record. Referee Likens accepted the stipulated agreement and issued an
order directing the Bureau of Motor Vehicles to remove the conviction from Liston’s
driving record and to reinstate his driving privileges. The 2003 charges were thus
restored.
The case was continued for the next two years until June 2012, when Judge Jesse
Villalpando stated at a hearing that he would not have approved Referee Likens’s June
2010 order, rescinded the order, reinstated Liston’s guilty plea, which effectively
reinstated his reckless driving conviction, and ordered that notice be given to the Bureau
1
The State has not filed a brief in response to Liston’s petition for rehearing.
2
of Motor Vehicles. The judge also stated he would grant a hearing on the post-conviction
petition if Liston requested one.
Liston filed a motion for emergency stay, noting the rescission would cause him to
lose his driving privileges and his job. After a hearing, the court entered an extensive
order denying relief.
Liston appealed the rescission order, and we concluded the trial court had no
authority to rescind the referee’s order nearly two years after the fact. See id. at *1-2
(citing Ind. Code § 33-23-2-4 (2004) (“All courts retain power and control over their
judgments for ninety (90) days after rendering the judgments in the same manner and
under the same conditions as they retained power and control during the term of court in
which the judgments were rendered.”); Masterson v. State, 511 N.E.2d 499, 500 (Ind. Ct.
App. 1987) (court erred by vacating order granting post-conviction relief 179 days later);
Pettiford v. State, 504 N.E.2d 324, 327 (Ind. Ct. App. 1987) (court erred by vacating
order granting post-conviction relief 92 days later)). However, we determined that the
rescission, which left Liston’s post-conviction petition pending, was not a final
appealable order, and we thus dismissed his appeal for failure to seek permission to file
an interlocutory appeal. Id. at *2-3. Chief Judge Robb dissented on this point, observing
that the trial court’s order denying Liston’s request for a stay noted he had been properly
advised before his plea, that the court was unlikely to have a different view after a formal
hearing, and that the case would eventually be back before this Court, all while Liston
suffered a loss of driving privileges. Id. at *3. She thus stated she would reverse the
3
rescission order in the interest of preserving the finality of judgments and fundamental
fairness. Id. at *4.
Upon further reflection, we find this case sufficiently like Masterson to allow an
appeal. In Masterson, the petitioner appealed after the post-conviction court: (1) vacated
its order, entered over 90 days earlier, granting post-conviction relief and (2) denied the
post-conviction petition. 511 N.E.2d at 499.
Here, the court rescinded the order granting post-conviction relief well over 90
days after it was entered, but it did not formally deny Liston’s post-conviction petition.
Despite the lack of a formal denial and despite its statement that it would grant a hearing
on the petition if Liston requested one, the court subsequently entered an extensive order
denying Liston’s request for a stay. In the twelve-page order, the court quoted a portion
of Liston’s guilty plea hearing, beginning with the following:
THE COURT: Because you are pleading guilty to a motor vehicle
violation, do you understand this conviction will be reported to the Bureau
of Motor Vehicles and a conviction will appear on your driving record?
THE DEFENDANT: Yes, I do.
THE COURT: And any combination of any prior conviction or any
future conviction could one day result in you being found a habitual traffic
violator?
THE DEFENDANT: Yes.
Appellant’s App. pp. 55-56. Later in its order, the court stated, “[T]he Defendant was
provided notice of his potential HTV eligibility by the Court and had experienced legal
counsel present when the Court stated to him on November 24, 2003 that any future
conviction could result in his being found a habitual traffic offender.” Id. at 63.
4
We conclude that the court’s determination that Liston was properly advised prior
to his plea was in effect a denial of his petition for post-conviction relief. We further
conclude that this determination, along with the reinstatement of Liston’s conviction and
the resultant loss of his driving privileges, is sufficient to make the rescission a final
appealable order. We therefore reverse the court’s order rescinding the prior grant of
post-conviction relief and remand for proceedings on the 2003 charges.
Reversed and remanded.
ROBB, C.J., and MAY, J., concur.
5