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

• Court: Indiana Court of Appeals
• Decided: May 26, 2016
• Docket: 79A04-1506-CR-601
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 1 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 2 of 10 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

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 3 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 4 of 10 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).

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 5 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 6 of 10 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

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 7 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 8 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 9 of 10 [20] Affirmed.

Bradford, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016 Page 10 of 10