Jason R. Cozmanoff v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 22, 2019
• Docket: 19A-CR-1426
• Status: Published

Opinion

FILED Oct 22 2019, 8:38 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Paul G. Stracci Curtis T. Hill, Jr. J. Michael Woods Attorney General of Indiana Stracci Criminal Defense, P.C. Caryn N. Szyper Crown Point, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jason R. Cozmanoff, October 22, 2019 Appellant, Court of Appeals Case No. 19A-CR-1426 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Salvador Vasquez, Appellee. Judge Trial Court Cause No. 45G01-1203-FC-28

Brown, Judge.

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 1 of 10 [1] Jason R. Cozmanoff appeals the trial court’s denial of his petition for

specialized driving privileges. We affirm.

Facts and Procedural History

[2] In March 2012, Cozmanoff was driving and struck four correctional officers

who were running alongside the road, resulting in the death of one of the

officers and injuries to the others, and Cozmanoff did not stop. On February 7,

2014, following a jury trial, the court sentenced him to four years for reckless

homicide as a class C felony under Count I; one year for criminal recklessness

as a class A misdemeanor under Count II; one and one-half years for each of

two counts of criminal recklessness as class D felonies under Counts III and IV;

four years for failure to stop after an accident resulting in death as a class C

felony under Count V; and six months for reckless driving as a class B

misdemeanor under Count XIII. The court ordered the sentences in Counts I

through V to be served consecutively and concurrent to that in Count XIII for

an aggregate sentence of twelve years. The order provides in part:

Pursuant to IC 9-30-13-4,[1] the Court orders that the defendant’s operator’s license be suspended for a period of three (3) years as

1 At the time, Ind. Code § 9-30-13-4 provided in part:

(a) If a person commits any of the following offenses, the court that convicted the person shall recommend the suspension of the person’s driving privileges for a fixed period of at least two (2) years and not more than five (5) years: ***** (2) Reckless homicide resulting from the operation of a motor vehicle (IC 35-42-1-5).

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 2 of 10 to Count I, by the Bureau of Motion [sic] Vehicles. Pursuant to IC 9-30-4-6.5,[2] the imposition of the suspensions are delayed until the defendant is released from the Department of Correction or on parole. The clerk is directed to notify the Bureau of Motor Vehicle.

Appellant’s Appendix Volume II at 29.

[3] On May 1, 2019, Cozmanoff filed a verified petition for specialized driving

privileges citing Ind. Code § 9-30-16-3. 3 On May 17, 2019, Cozmanoff filed an

amended petition for specialized driving privileges citing Ind. Code § 9-30-16-4 4

and alleging the Indiana Bureau of Motor Vehicles gave notice to him that his

license would be suspended from June 14, 2019, until June 14, 2022. He sought

specialized driving privileges to travel for work, visitation with his children,

medical appointments, and grocery and warehouse or department store visits.

On May 29, 2019, the State filed a response to Cozmanoff’s amended petition

arguing it is undisputed that his reckless homicide conviction stemmed from the

(b) If the court fails to recommend a fixed term of suspension, or recommends a fixed term that is less than the minimum term required by statute, the bureau shall impose the minimum period of suspension required under this section.

(Repealed by Pub. L. No. 217-2014, § 149 (eff. Jan. 1, 2015)). 2 At the time, Ind. Code § 9-30-4-6.5 provided: “If a person receives a sentence that includes: (1) a term of incarceration; and (2) suspension of the person’s driving privileges under this chapter; the suspension of driving privileges begins on the date the person is released from incarceration and not on the date the person is convicted.” (Repealed by Pub. L. No. 149-2015, § 99 (eff. Jan. 1, 2015)). 3 Ind. Code § 9-30-16-3(a) provides in part: “If a court orders a suspension of driving privileges under this chapter, . . . the court may stay the suspension and grant a specialized driving privilege as set forth in this section.” 4 Ind. Code § 9-30-16-4(a) provides: “An individual whose driving privileges have been suspended by the bureau by an administrative action and not by a court order may petition a court for specialized driving privileges as described in section 3(b) through 3(d) of this chapter.”

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 3 of 10 use of a motor vehicle and that, based on Ind. Code § 9-30-16-2(c), 5 he is not

eligible for specialized driving privileges. On June 3, 2019, the court held a

hearing and entered an order finding that Cozmanoff “is not eligible for a

specialized driving privilege under I.C. 9-30-13-4 (repealed), now codified under

I.C. 9-30-16-2(c)” and denying his petition for specialized driving privileges.

Appellant’s Appendix Volume II at 27.

Discussion

[4] Cozmanoff claims he is not ineligible for specialized driving privileges. He

argues that Ind. Code § 9-30-16-2 was not in effect at the time that his license

suspension was imposed. He further argues that, for a person convicted of

reckless homicide involving a vehicle, Ind. Code § 9-30-16-2 requires that the

court order that person’s driving privileges suspended whereas, prior to January

1, 2015, Ind. Code § 9-30-13-4 (repealed) provided that the court would

recommend the suspension of the person’s driving privileges and Ind. Code § 9-

30-4-6 provided that the bureau would suspend the person’s driving privileges.

(12-13) He argues “I.C. § 9-30-16-2(c) is silent as to suspensions imposed by the

Bureau, or specialized driving privileges for those suspensions under Ind. Code

§ 9-30-16-4” and “[t]his creates two categories of license suspension based on a

5 Ind. Code § 9-30-16-2(c) provides:

If a person is convicted of an offense that includes the element of causing the death of another person and the offense involved the operation of a motor vehicle or was an offense under IC 9-30-5, the court shall order that the person’s driving privileges are suspended for a period of at least two (2) years and not more than the maximum allowable period of incarceration of the criminal penalty for the offense. A person whose driving privileges are suspended under this section is not eligible for specialized driving privileges under section 3 of this chapter.

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 4 of 10 conviction for reckless homicide: those imposed prior to the effective date of

I.C. § 9-30-16-2, which are eligible for specialized driving privileges, and those

imposed after the effective date, which are not eligible.” Appellant’s Brief at 16.

[5] The State maintains that Cozmanoff was unable to obtain relief from his license

suspension under the applicable pre-2015 or current statutes. It argues he is

prohibited from receiving specialized driving privileges under current Ind. Code

§ 9-30-16-2(c). It further states that “specialized driving privileges” did not exist

in Indiana at the time his license suspension was imposed, that prior to 2015

suspended drivers could petition for “restricted” driving permits under Ind.

Code § 9-24-15-2 (repealed Jan. 1, 2015) but that individuals convicted of

reckless homicide as a result of an automobile accident were not eligible for a

restricted permit under Ind. Code § 9-24-15-1 (repealed Jan. 1, 2015), and thus

that Cozmanoff was disqualified from obtaining relief from his license

suspension under the pre-2015 statutory scheme as well as the current statute.

Appellee’s Brief at 8-9. It asserts “the legislative intent has been clear for nearly

30 years” and that, “[u]nder both the restricted driving permit statutes and the

specialized driving privileges statutes, the General Assembly excluded drivers,

like Cozmanoff, who were convicted of recklessly killing someone with their

motor vehicle, from receiving relief from their license suspensions.” Id. at 13.

[6] The decision to grant or deny a petition for specialized driving privileges is

reviewable for an abuse of discretion. Orange v. Ind. Bureau of Motor Vehicles, 92

N.E.3d 1152, 1157 (Ind. Ct. App. 2018) (citing Jones v. State, 62 N.E.3d 1205,

1207 (Ind. Ct. App. 2016)). “The trial court has ‘almost unfettered discretion’

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 5 of 10 when deciding whether to grant a petition for specialized driving privileges.”

Id. (citing Jones, 62 N.E.3d at 1207 n.3). A question of statutory interpretation

is a matter of law. Id. at 1155 (citation omitted). The primary purpose in

statutory interpretation is to ascertain and give effect to the legislature’s intent.

State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind. 2008). The best evidence of

that intent is the language of the statute itself, and we strive to give the words in

a statute their plain and ordinary meaning. Id. We presume the legislature

intended for the statutory language to be applied in a logical manner consistent

with the statute’s underlying policy and goals. Id.

[7] The court entered its order suspending Cozmanoff’s license in February 2014,

and he filed his petition for specialized driving privileges in May 2019. He

states that, “[p]rior to the creation of I.C. § 9-30-16-2, license suspensions upon

conviction for Reckless Homicide were governed by two statutes read in

conjunction”—Ind. Code § 9-30-13-4 and Ind. Code § 9-30-4-6. Appellant’s

Brief at 12. Prior to January 1, 2015, Ind. Code § 9-30-13-4 provided in part

that, “[i]f a person commits any of the following offenses, the court that

convicted the person shall recommend the suspension of the person’s driving

privileges for a fixed period of at least two (2) years and not more than five (5)

years: . . . Reckless homicide resulting from the operation of a motor vehicle . . .

.” See Pub. L. No. 217-2014, § 149 (eff. Jan. 1, 2015) (repealing). Ind. Code §

9-30-4-6(b) provided in part that “[t]he bureau shall suspend or revoke without

notice or hearing the current driver’s license or driving privileges and all

certificates of registration and license plates issued or registered in the name of a

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 6 of 10 person who is convicted of any of the following: . . . reckless homicide resulting

from the operation of a motor vehicle . . . .” See Pub. Law No. 188-2015, § 104

(eff. Jul. 1, 2015), Pub. Law No. 198-2016, § 597 (eff. Jul. 1, 2016) (repealing). 6

[8] Also prior to 2015, Ind. Code § 9-24-15-2 provided that “[i]f . . . an individual’s

driving privileges have been suspended,” “because of the nature of the

individual’s employment, the suspension would work an undue hardship and

burden upon the individual’s family or dependents,” and “the individual is not

ineligible for restricted driving privileges under section 1 of this chapter,” then

the individual may file a petition for “restricted driving privileges” for the

purpose of driving to and from work and in the course of employment during

the period of the driving license suspension. See Pub. Law No. 217-2014, § 87

(eff. Jan. 1, 2015) (repealing). Ind. Code § 9-24-15-1 provided that the chapter

did “not apply to the following: . . . When suspension of driving privileges is by

reason of: . . . (C) the applicant has been convicted of . . . reckless homicide as a

result of an automobile accident.” See Pub. Law No. 217-2014, § 87 (eff. Jan. 1,

2015) (repealing).

[9] Ind. Code §§ 9-30-16, governing “specialized driving privileges,” became

effective on January 1, 2015. See Pub. L. No. 217-2014 § 154 (eff. Jan. 1, 2015).

Ind. Code § 9-30-16-3(a) provides in part that, “[i]f a court orders a suspension

6 Ind. Code § 9-30-4-6.1, which became effective January 1, 2016, provides in subsection (a) that “[t]he bureau shall suspend or revoke the current driver’s license or driving privileges . . . of an individual who is convicted of any of the following: . . . reckless homicide resulting from the operation of a motor vehicle,” and in subsection (c) that “[a]n individual whose driving privileges are suspended under this chapter is eligible for specialized driving privileges under IC 9-30-16.”

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 7 of 10 of driving privileges under this chapter, . . . the court may stay the suspension

and grant a specialized driving privilege as set forth in this section.”

Subsections (b) through (d) of Ind. Code § 9-30-16-3 set forth the requirements

of a petition for specialized driving privileges and indicate that privileges

granted shall be for 180 days to two and one-half years and that the terms of

specialized driving privileges must be determined by a court. Ind. Code § 9-30-

16-4(a) provides that “[a]n individual whose driving privileges have been

suspended by the bureau by an administrative action and not by a court order

may petition a court for specialized driving privileges as described in section

3(b) through 3(d) of this chapter.” Ind. Code § 9-30-16-2(c) provides:

If a person is convicted of an offense that includes the element of causing the death of another person and the offense involved the operation of a motor vehicle or was an offense under IC 9-30-5, the court shall order that the person’s driving privileges are suspended for a period of at least two (2) years and not more than the maximum allowable period of incarceration of the criminal penalty for the offense. A person whose driving privileges are suspended under this section is not eligible for specialized driving privileges under section 3 of this chapter.

[10] Here, the trial court’s February 7, 2014 order provides “the Court orders that

the defendant’s operator’s license be suspended for a period of three (3) years as

to Count I, by the Bureau of Motion [sic] Vehicles.” Appellant’s Appendix

Volume II at 29. The order was consistent with Ind. Code § 9-30-13-4 (repealed

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 8 of 10 eff. Jan. 1, 2015) in effect at the time. 7 We observe that, prior to January 1,

2015, due to his conviction for reckless homicide as a result of an automobile

accident, Cozmanoff would not have been eligible for restricted driving

privileges. See Ind. Code §§ 9-24-15-1 and -2 (repealed eff. Jan. 1, 2015).

Additionally, pursuant to Ind. Code § 9-30-16-2(c), he is not eligible for

specialized driving privileges under Ind. Code § 9-30-16-3 because his offense

under Count I included the element of causing the death of another person and

the offense involved the operation of a motor vehicle. Also, although now-

repealed Ind. Code § 9-30-13-4 provided that the court “shall recommend the

suspension” of the person’s driving privileges whereas Ind. Code § 9-30-16-2(c)

provides the court “shall order” that the person’s privileges be suspended, we

note that on February 7, 2014, the trial court ordered that Cozmanoff’s license

be suspended, and we are not persuaded that he may now obtain specialized

driving privileges by way of Ind. Code § 9-30-16-4 which relates to individuals

whose driving privileges were suspended by administrative action and not by a

court order. We conclude the trial court’s denial of Cozmanoff’s petition for

specialized driving privileges gives effect to the legislature’s intent.

[11] For the foregoing reasons, we affirm the trial court’s judgment.

[12] Affirmed.

7 The order of suspension is also consistent with the current provisions of Ind. Code § 9-30-16-2(c) (“the court shall order that the person’s driving privileges are suspended for a period of at least two (2) years and not more than the maximum allowable period of incarceration of the criminal penalty for the offense”).

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 9 of 10 Altice, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Opinion 19A-CR-1426 | October 22, 2019 Page 10 of 10