DocketNumber： No. 45A03-1503-MI-73
Citation Numbers： 46 N.E.3d 489, 2015 WL 7710299
Judges： Altice, Brown, Riley
Filed Date： 11/30/2016
Status： Precedential
Modified Date： 11/11/2024
STATEMENT OF THE CASE
[1] Appellants-Respondents, Kent W. Abernathy, Commissioner of the Indiana Bureau of Motor Vehicles, and Bernard Carter, Prosecuting Attorney for Lake County (collectively, BMV), appeal from the consolidated trial court’s denials of the BMVs motions to correct error, and in one case, the BMVs motion for relief from judgment, in which the trial court upheld its grant of the five Appellees-Petitioners’, Eric C. Gulden (Gulden), Jeremy Crawford (Crawford), David J. Klahn (Klahn), John P. Martin (Martin), and James M. Panozzo (Panozzo) (collectively, Appellees), petitions for judicial review of the BMVs determinations that each of them qualified as an habitual traffic violator (HTV).
[2] We reverse.
ISSUE
[3] The BMV raises one issue on appeal, which we restate as: Whether Indiana Code section 9-30-10-4(e), which requires the BMV to use the dates of the offenses rather than the dates of. the judgments in determining a person’s status as an HTV, violates the ex post facto clauses of the Indiana and United States Constitutions, as applied to Appellees who committed their third HTV-qualifying offense pri- or to the effective date of subsection 4(e) but whose third jüdgmeht was entered after that provision became effective.
FACTS AND PROCEDURAL HISTORY
[4] On October 4, 2003, Gulden committed the offense of reckless driving, for 'which judgment was entered on November 17, 2003: He committed the offense of operating while intoxicated on January 31, 2004, and judgment was entered against him on March' 28, 2005. Thereafter, on July 29, 2007, he committed' the offense- of operating while intoxicated endangering a person, with judgment entered on April 21, 2014. - On May 1, 2014, the BMV notified Gulden that he had accumulated three qualifying judgments-within a ten-year period and as a result, Gulden was deemed an HTV and his driver’s license was suspended for ten years. On July 16, 2014, Gulden filed a petition for judicial review of his HTV determination.
[5] Crawford committed the offense of operating while intoxicated on October 27, 2003, November 30, 2003, and January 5, 2008. Judgment on these offenses was entered on December 22, 2003, September 12, 2005, and September 3, 2014, respectively. On September 9, 2014, five days after the last qualifying judgment, the BMV notified Crawford of his HTV status and his ten-year license suspension. On September 24, 2014, Crawford filed a petition for judicial review of his HTV determination.
[6] On August 24, 2002, Klahn committed the offense of operatihg while intoxicated and judgment was entered on November 27, 2002. He committed the offense of operating while intoxicated endangering a person on December 30,
[7] Martin committed the offense of driving while intoxicated on January 4, 2004, with judgement entered thereon on February 23, 2004, On February 19, 2008, he committed the offense of operating while intoxicated endangering' a person, and the trial court entered judgment on April 14, 2014. On. November 14, 2008, Martin committed the offense of prior operating while intoxicated within five years, and judgment was also entered on April 14, 2014. On May 14, 2014, . the BMV notified Martin, of his HTV status and his resulting ten-year license suspension. On June 26, 2014, Martin filed a petition for judicial review of his HTV determination.
[8] On February 7, 2004, Panozzo committed the offense of reckless driving, and judgment was entered on March 15, 2004. He committed the offense of operating while intoxicated on April 21, -2007, and judgment was entered against him on October 19, 2007. On December 23, 2011, he' committed the offense of operating while intoxicated endangering a person, with judgment entered on April 28, 2014. On May 14, 2014, the BMV notified him of his HTV status and his ten-year license suspension. On June 2, 2014, Panozzo requested administrative review of the HTV determination, after which the BMV upheld its decision on June 25, 2014, The following day, Panozzo filed a petition for judicial review with the trial court.
[9] The trial court granted Appellees’ separate petitions for judicial review based on its interpretation of Indiana Code section 9-30-10-4, which defines an HTV.
DISCUSSION AND DECISION
I. Standard of Review
[11] We review the denial of a request for a new trial presented by a Trial Rule 59 motion to correct error or — with respect to Crawford — a Trial Rule 60(B) motion for relief from judgment for abuse of discretion. Speedway SuperAmerica, LLC. v. Holmes, 885 N.E.2d 1265, 1270 (Ind.2008),denied. We will reverse only where the trial court’s judgment is clearly against the logic and effect of the facts and circumstances before it, or where the trial court errs on a matter of law. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind.2013).
[12] However, when reviewing a challenge to the constitutionality of a statute, we apply a de novo standard of review. Gul v. City of Bloomington, 22 N.E.3d 853, 857 (Ind.Ct.App.2014), trans. denied. As such, every statute stands before us clothed with the presumption of constitutionality until clearly overcome-by a contrary showing. In re Adoption of K.G.B., 18 N.E.3d 292, 299 (Ind.Ct.App.2014) (citing State Bd. of Tax Comm’rs v. Town of St. John, 702 N.E.2d 1034, 1037 (Ind.1998)). The party challenging the constitutionality of the statute bears the burden of proof and all doubts are. resolved against that party. - Id. If two reasonable interpretations of a statute are available, one of which is constitutional and the other not, we will choose that path which permits upholding, the statute because we will not presume that the legislature violated the constitution unless the unambiguous language of the statute requires that conclusion. Id. In addition, where, as here, the issue focuses on the constitutionality of a statute as applied to Appellees, , the reviewing court can only “declare the challenged statute or regulation unconstitutional on the facts of the. particular case.” Id. (citing Hazelwood v. State, 3 N.E.3d 39, 40 (Ind.Ct.App.2014), reh’g denied).
II. Applicability of Ind.Code § 9-80-10-1
Section 4 of the Habitual Violator of Traffic Laws Chapter provides, in pertinent part,
(b) A person who has accumulated at least three (3) judgments within a ten (10) year period for any of the following violations, singularly or in combination, and not arising out of the same incident, is a habitual violator:
(1) Operation of a vehicle while intoxicated.
⅜ ⅜ ⅜
(5) Reckless driving.
⅜ ⅜ ⅜
(e) For purposes of this section, the offense date is used when , determining the number of judgments accumulated within a ten (10) year period.
I.C. § 9-30-10-4. Even though the HTV statute has been amended several times in recent years, only, the 2012 amendment, which became effective on July 1, 2012 and which added subsection 4(e), is directly at issue here. See Pub.L. No. 125-2012, § 349, 2012 Ind. Acts 2169, 2342-44. ■
[13] Pursuant to the language of the statute, the HTV determination is triggered by the accumulation of a third judgment for a qualifying violation within ten years. See I.C. § 9-30-10-4(b). Appellees do not appear to dispute that under the plain terms of the statute,- they each qualify as an HTV by application of. subsection 4(e). Gulden committed qualifying offenses on October 4, 2003, January 31,
[14] Although the time between each Appellee’s first and third HTV qualifying judgment exceeded ten years, at least one of each Appellee’s three judgments was entered after July 1,2012, when subsection 4(e)' became effective. Accordingly, the BMV used the Appellee’s offense dates to calculate each Appellee’s HTV status. Classifying each Appellee as an HTV, the BMV was required to suspend their driving privileges for ten years. See I.C. § 9-30-10-5(b) (“the bureau shall suspend the person’s driving privileges”). .
[15] Nevertheless, the trial court concluded that subsection 4(e) rendered the statute unconstitutional ex post facto as applied to Appellees under both the United States and the Indiana Constitutions. The trial court reasoned that but for the amendment, which was enacted after each Appellee committed his third HTV qualifying offense, -the Appellees would not have been deemed habitual traffic violators because each Appellee’s third judgment occurred more than 10 years after his first. It is only when the commission date of the offense is used, each Appellee falls within the ten-year HTV time period. The BMV now disputes the trial court’s application of the ex post facto clause
III. Ex Post Facto Clause
[16] Both the U.S. Constitution and our state Constitution contain prohibitions against ex post facto laws. Article 1, Section 10 of the United States Constitution states that “[n]o State shall ... pass any ... ex post facto Law.” The Indiana Constitution provides that “[n]o ex post facto law ... shall ever be passed.” Ind. Const, art. .1, § 24. Among other things “[t]he ex post facto prohibition forbids Congress and the States to enact any law Svhich imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-36, 18 L.Ed. 356 (1867)) (footnote omitted). The underlying purpose of the ex- post facto clause is to give effect to the fundamental principle that persons have a right to a fair warning of that conduct which will give rise to criminal penalties. Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.2006) cert. denied 549 U.S. 996, 127 S.Ct. 513, 166 L.Ed.2d 370 (2006). Although both provisions are similarly- worded, our supreme court acknowledged in Wallace that we “nonetheless apply an independent analysis when interpreting provisions in our own [Constitution.” Wallace v. State, 905 N.E.2d 371, 377-78 (Ind.2009), reh’g denied. “The Indiana Constitution has unique vitality, even where its words parallel federal language.” Id. at 378 (quoting State v. Gerschoffer, 763 N.E.2d 960,
[17] Here, the State does not dispute that the application of subsection 4(e) creates an ex post facto effect as to these Appellees. Each Appellee committed his third HTV-qualifying offense prior to the enactment of the statutory amendment, and received a judgment on the offense after the amendment took effect. Calculating the ten-year term for the HTV determination based on the guideline enacted in subsection 4(e) — the date of the offense — the BMV suspended Appellees’ driving privileges for a period of ten years. See I.C. § 9-30-10-4(b), (e); -5(b).
[18] We have previously stated that the constitutional prohibitions against ex. post facto criminal sanctions require that criminal proceedings be governed by the statutory provision in effect at the time of the offense. Settle v. State, 709 N.E.2d 34, 35 (Ind.Ct.App.1999). Applying this well-established legal adage, we should apply the version of I.C. § 9-30-10-4 in effect at the time of the commission of the third triggering HTV-offense. However, we have noted that the ex post facto clause ‘“does not give a criminal a right to be tried, in all respects, by the law in force when the crime charged was committed.’ ” Hayden v. State, 771 N.E.2d 100, 102 (Ind.Ct.App.2002) (quoting Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)), trans. denied. The clause is not designed “to limit legislative control of remedies and modes of procedure which do not affect matters of substance.” Id. “Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.” Id.
[19] Our first task then is to determine whether our General Assembly’s amendment of I.C. § 9-30-10-4(e) is procedural or substantive for purposes of the ex post facto provisions of both the Indiana and United States Constitutions. - We have previously noted that “ ‘[procedural, adjective or remedial law is that portion of the law which prescribes the method of enforcing a right or obtaining a redress for the invasion of that right. Substantive law, on the other hand, is that portion of the law which creates, defines and regulates rights.’ ” Id. (quoting State v. Fletcher, 149 Ariz. 187, 717 P.2d 866, 870 (1986)). “An amendment is ‘procedural in nature for purposes of the ex post facto doctrine, and may be applied to crimes committed before the effective date’ if ⅛, ‘neither changes the elements of the crime nor enlarges its punishment.’ ” Weaver v. State, 845 N.E.2d 1066, 1070 (Ind.Ct.App.2006) (quoting Ritchie v. State, 809 N.E.2d 258, 264 (Ind.2004), reh’g denied, cert. denied 546 U.S. 828, 126 S.Ct. 42, 163 L.Ed.2d 76 (2005)), trans. denied.
[20] In Ramon v. State, 888 N.E.2d 244, 249 (Ind.Ct.App.2008), the State sought to amend its-information, charging Ramon with Class A felonies instead of Class B felonies. Id. In light of the supreme court’s ruling in Fajardo v. State, 859 N.E.2d 1201 (Ind.2007),
[21] Similarly, in Hurst v. State, 890 N.E.2d 88, 95 (Ind.Ct.App.2008), trans. denied, this court took Ramon’s analysis one step furthér and found that strong and compelling reasons existed favoring retroactive application of the revised version of I.C. § 35-34-l-5(b). In Hurst, we observed the following:
For'over twenty years prior to Fajardo, case law regularly’ permitted amendments related to matters of substance as long as the substantial rights of the defendant were not prejudiced, regardless of whether the amendments were untimely under I.C. § 35 — 34—1—5(b). On -January 16, 2007, our [s]upreme [c]ourt changed course and held that the statute clearly required amendments of substance to be made not less than thirty days before the omnibus dates, even if a defendant’s substantial rights were not prejudiced by the amendment. The legislature immediately responded to Fa-jardo by amending the statute, effective May 8, 2007, to reflect the pre-Fajardo law (ie., amendments of substance permitted anytime before trial so long as the defendant’s substantial rights are not prejudiced). Thus, Fajardo was superseded by statute in less than four months. This prompt return to- pre-Fa-jardo law indicates urgency in the legislature’s desire to negate the effects of Fajardo. Though the legislature did not expressly provide for retroactive application of the amended statute, we are confident that this was the clear intent of. such legislation.
Id. (internal citations omitted). See also Gomez v. State, 907 N.E.2d 607 (Ind.Ct.App.2009), trans. denied.
[22] Likewise, here, our legislature explained the “method of enforcing” the HTV determination through its addition of subsection 4(e). See Hayden, 771 N.E.2d at 102. Upon the 2012 addition of the subsection, the legislature clarified that I.C. § 9-30-10-4 is not triggered at the time of the commission of the offense, but at the time of the judgment for the third qualifying HTV offense. Prior to -the amendment, the statute provided that a person who- obtains three qualifying judgments within ten years is an HTV subject to a ten year administrative suspension of driving ■ privileges. I.C. § 9-30-10-4(b)(2010). The added subsection 4(e) merely established that even though the
[23] The HTV statute aims to regulate the dangerous conduct of the driver, and is a “protection of the remaining public using the highways.” Hamilton v. State ex rel. Van Natta, 163 Ind.App. 342, 323 N.E.2d 659, 660 (1975), reh’g denied, appeal dismissed, 424 U.S. 901, 96 S.Ct. 1092, 47 L.Ed.2d 306 (1976) (quoting State ex rel. Van Natta v. Rising, 262 Ind. 33, 310 N.E.2d 873, 875 (1974)). Because the addition of subsection 4(e) to the HTV statute only sought to clarify the calculation method used in the HTV determination, it did not amend the offense nor alter the penalty and was procedural in nature. See Weaver,. 845 N.E.2d at 1070. Even though, as here, where the statutory amendment “may work to the disadvantage ¡of a defendant,” this hardship does not propel a procedural change into the ex post facto realm. Hayden, 771 N.E.2d at 102. Accordingly, we reverse the trial court’s judgment.
CONCLUSION
[24] Based on the foregoing, we com elude that Indiana Code section 9-30-10-4(e), which requires the BMV to use the dates of the offenses rather than the dates of the judgments in determining a person’s status as a HTV, is a procedural amendment which does not violate the ■ ex post facto clauses of the Indiana and-United States Constitutions. -
[25] Reversed.
. Although the order granting Crawford’s petition for judicial review did not provide the trial court’s- reasons,- Crawford's petition raised the same ex post facto argument as the other Appellees. As such, we assume that Crawford’s petition was granted on the same grounds.
. In Fajardo, decided in January 2007, our supreme court interpreted I.C. § 35-34-1-5,