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

• Court: Indiana Court of Appeals
• Decided: August 10, 2015
• Docket: 49A02-1411-MI-833
• Status: Published

Opinion

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

Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 1 of 6 [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-

Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 2 of 6 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

Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 3 of 6 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 Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 4 of 6 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 5 of 6 [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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1411-MI-833 | August 10, 2015 Page 6 of 6