Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Mar 11 2013, 9:55 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY W. ELFTMAN GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Kokomo, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
MICHAEL PORTER, ) ) Appellant-Defendant, ) ) vs. ) No. 34A02-1210-CR-840 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable Douglas Tate, Judge Cause No. 34D03-1205-CM-486
March 11, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
Michael Porter appeals his conviction of operating a vehicle with an alcohol
concentration equivalence of 0.08 or more, a Class C misdemeanor. Porter raises the sole
issue of whether there was sufficient evidence to sustain his conviction. Concluding that
there was sufficient evidence, we affirm his conviction.
Facts and Procedural History
On May 5, 2012, Trooper Charles Coffee made a traffic stop of the vehicle driven
by Porter due to a dysfunctional license plate light. After Trooper Coffee observed signs
of intoxication, Porter told him he had consumed three beers. Trooper Coffee asked
Porter to exit his vehicle. He administered two field tests and then, believing that there
was probable cause Porter was driving while intoxicated, transported him to the Howard
County Sheriff’s Department. There, Porter failed one field sobriety test but passed
another. Trooper Coffee then administered a chemical test, and Porter registered a breath
alcohol concentration of 0.12 on the certified data master instrument.
Porter was charged with operating while intoxicated endangering a person, a Class
A misdemeanor, and operating a vehicle with an alcohol concentration equivalence of
0.08 or more, a Class C misdemeanor. After a bench trial on August 22, 2012, he was
found not guilty of the former charge and guilty of the latter. He was convicted and
sentenced at the conclusion of the trial. On October 2, 2012, Porter filed a “Motion to
Appoint Public Defender for Purposes of Appeal.” Appellant’s Appendix at 21. The trial
court granted the motion that day. This appeal followed. Additional facts will be
provided as needed.
2 Discussion and Decision
I. Timeliness of Appeal
The State raises the preliminary issue of whether Porter’s appeal is forfeited due to
his failure to file a timely notice of appeal. Appellate Rule 9(A)(5) states that “[u]nless
the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as
provided by P.C.R. 2.” Indiana Post-Conviction Rule 2(1)(a) provides:
An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if; (1) the defendant failed to file a timely notice of appeal; (2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and (3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule. In this case, Porter did not file a timely notice of appeal. Instead, eleven days after his
thirty-day window to file an appeal had concluded, Porter filed a motion requesting that
the trial court “appoint a Public Defender for the purpose of filing a belated appeal.”
Appellant’s App. at 21. The State argues that even though the trial court granted this
motion and appointed a public defender, it did not specifically grant permission to Porter
to file a belated appeal. Porter argues that the court implicitly did so.
While Porter’s motion and the trial court order did not specifically set forth the
elements in Indiana Post-Conviction Rule 2(1)(a), the motion did mention filing a belated
appeal. In addition, several facts were set out in the motion that established Porter’s
indigence and eligibility for a public defender but can also be construed to support a
motion for permission to file a belated appeal.1 The trial court has sound discretion in
1 Those facts are, in part, as follows: 3 giving permission to file a belated appeal. Russell v. State, 970 N.E.2d 156, 160 (Ind. Ct.
App. 2012), trans. denied. And when the trial court grants such a request without holding
a hearing, we review that decision de novo. Id.
Several factors are relevant to the defendant’s diligence and lack of fault in the
delay of filing. Moshenek v. State, 868 N.E.2d 419, 423-24 (Ind. 2007) (listing the
factors for each). Here, a review of some of those factors reveals that Porter would likely
succeed on a motion for permission to file a belated appeal. First, it does not appear that
he was advised by the trial court that he had a right to appeal his conviction. This was a
violation of Indiana Criminal Rule 11. It also establishes Porter’s lack of fault. See
Moshenek, 868 N.E.2d at 424; see also Cruite v. State, 853 N.E.2d 487, 490 (Ind. Ct.
App. 2006) (concluding that the appellant’s failure to file a timely notice of appeal was
not his fault because the trial court failed to inform him of his appellate rights), trans.
denied. And with regard to diligence, the overall passage of time is relevant. Moshenek,
868 N.E.2d at 424. Here, Porter’s motion for appointment of a public defender was filed
only a few days after the time to appeal had expired. Cf. Gallagher v. State, 274 Ind. 235,
410 N.E.2d 1290, 1292 (1980) (finding diligence under the circumstances even though
petition was filed nine years after trial).
Finally, we note that if we were to dismiss this appeal, as the State requests, Porter
would simply go back to the trial court and file a motion for permission to file a belated
notice of appeal. Because the issue before this court has been fully briefed by both
3. The Defendant was appointed a public Defender at the trial Court level and has had no change in circumstances that would allow him to hire private counsel. 4. The Defendant has no funds with which to hire private counsel to assist with his appeal. 5. The Defendant has no funds with which to pay the costs associated with the filing of an appeal. Appellant’s App. at 21. 4 parties, the policy of judicial economy favors deciding the case on its merits rather than
awaiting further judicial procedures which will merely result in the return of the case to
this court. See Price v. State, 619 N.E.2d 582, 583 (Ind. 1993) (court chose to decide
case on its merits in the interest of judicial economy despite procedural default where
defendant notified trial court of his desire to appeal judgment but appointed counsel did
not timely file notice of appeal); George v. State, 862 N.E.2d 260, 265 (Ind. Ct. App.
2006) (court chose to decide case on its merits in the interest of judicial economy where
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Mar 11 2013, 9:55 am purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY W. ELFTMAN GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Kokomo, Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
MICHAEL PORTER, ) ) Appellant-Defendant, ) ) vs. ) No. 34A02-1210-CR-840 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable Douglas Tate, Judge Cause No. 34D03-1205-CM-486
March 11, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issue
Michael Porter appeals his conviction of operating a vehicle with an alcohol
concentration equivalence of 0.08 or more, a Class C misdemeanor. Porter raises the sole
issue of whether there was sufficient evidence to sustain his conviction. Concluding that
there was sufficient evidence, we affirm his conviction.
Facts and Procedural History
On May 5, 2012, Trooper Charles Coffee made a traffic stop of the vehicle driven
by Porter due to a dysfunctional license plate light. After Trooper Coffee observed signs
of intoxication, Porter told him he had consumed three beers. Trooper Coffee asked
Porter to exit his vehicle. He administered two field tests and then, believing that there
was probable cause Porter was driving while intoxicated, transported him to the Howard
County Sheriff’s Department. There, Porter failed one field sobriety test but passed
another. Trooper Coffee then administered a chemical test, and Porter registered a breath
alcohol concentration of 0.12 on the certified data master instrument.
Porter was charged with operating while intoxicated endangering a person, a Class
A misdemeanor, and operating a vehicle with an alcohol concentration equivalence of
0.08 or more, a Class C misdemeanor. After a bench trial on August 22, 2012, he was
found not guilty of the former charge and guilty of the latter. He was convicted and
sentenced at the conclusion of the trial. On October 2, 2012, Porter filed a “Motion to
Appoint Public Defender for Purposes of Appeal.” Appellant’s Appendix at 21. The trial
court granted the motion that day. This appeal followed. Additional facts will be
provided as needed.
2 Discussion and Decision
I. Timeliness of Appeal
The State raises the preliminary issue of whether Porter’s appeal is forfeited due to
his failure to file a timely notice of appeal. Appellate Rule 9(A)(5) states that “[u]nless
the Notice of Appeal is timely filed, the right to appeal shall be forfeited except as
provided by P.C.R. 2.” Indiana Post-Conviction Rule 2(1)(a) provides:
An eligible defendant convicted after a trial or plea of guilty may petition the trial court for permission to file a belated notice of appeal of the conviction or sentence if; (1) the defendant failed to file a timely notice of appeal; (2) the failure to file a timely notice of appeal was not due to the fault of the defendant; and (3) the defendant has been diligent in requesting permission to file a belated notice of appeal under this rule. In this case, Porter did not file a timely notice of appeal. Instead, eleven days after his
thirty-day window to file an appeal had concluded, Porter filed a motion requesting that
the trial court “appoint a Public Defender for the purpose of filing a belated appeal.”
Appellant’s App. at 21. The State argues that even though the trial court granted this
motion and appointed a public defender, it did not specifically grant permission to Porter
to file a belated appeal. Porter argues that the court implicitly did so.
While Porter’s motion and the trial court order did not specifically set forth the
elements in Indiana Post-Conviction Rule 2(1)(a), the motion did mention filing a belated
appeal. In addition, several facts were set out in the motion that established Porter’s
indigence and eligibility for a public defender but can also be construed to support a
motion for permission to file a belated appeal.1 The trial court has sound discretion in
1 Those facts are, in part, as follows: 3 giving permission to file a belated appeal. Russell v. State, 970 N.E.2d 156, 160 (Ind. Ct.
App. 2012), trans. denied. And when the trial court grants such a request without holding
a hearing, we review that decision de novo. Id.
Several factors are relevant to the defendant’s diligence and lack of fault in the
delay of filing. Moshenek v. State, 868 N.E.2d 419, 423-24 (Ind. 2007) (listing the
factors for each). Here, a review of some of those factors reveals that Porter would likely
succeed on a motion for permission to file a belated appeal. First, it does not appear that
he was advised by the trial court that he had a right to appeal his conviction. This was a
violation of Indiana Criminal Rule 11. It also establishes Porter’s lack of fault. See
Moshenek, 868 N.E.2d at 424; see also Cruite v. State, 853 N.E.2d 487, 490 (Ind. Ct.
App. 2006) (concluding that the appellant’s failure to file a timely notice of appeal was
not his fault because the trial court failed to inform him of his appellate rights), trans.
denied. And with regard to diligence, the overall passage of time is relevant. Moshenek,
868 N.E.2d at 424. Here, Porter’s motion for appointment of a public defender was filed
only a few days after the time to appeal had expired. Cf. Gallagher v. State, 274 Ind. 235,
410 N.E.2d 1290, 1292 (1980) (finding diligence under the circumstances even though
petition was filed nine years after trial).
Finally, we note that if we were to dismiss this appeal, as the State requests, Porter
would simply go back to the trial court and file a motion for permission to file a belated
notice of appeal. Because the issue before this court has been fully briefed by both
3. The Defendant was appointed a public Defender at the trial Court level and has had no change in circumstances that would allow him to hire private counsel. 4. The Defendant has no funds with which to hire private counsel to assist with his appeal. 5. The Defendant has no funds with which to pay the costs associated with the filing of an appeal. Appellant’s App. at 21. 4 parties, the policy of judicial economy favors deciding the case on its merits rather than
awaiting further judicial procedures which will merely result in the return of the case to
this court. See Price v. State, 619 N.E.2d 582, 583 (Ind. 1993) (court chose to decide
case on its merits in the interest of judicial economy despite procedural default where
defendant notified trial court of his desire to appeal judgment but appointed counsel did
not timely file notice of appeal); George v. State, 862 N.E.2d 260, 265 (Ind. Ct. App.
2006) (court chose to decide case on its merits in the interest of judicial economy where
defendant filed a timely notice of appeal but did not perfect it and later sought to file a
belated notice of appeal pursuant to Post-Conviction Rule 2). We therefore consider the
merits of Porter’s appeal.
II. Sufficiency of Evidence
A. Standard of Review
Our standard of review for sufficiency claims is well-settled. We do not reweigh
the evidence or assess witness credibility for ourselves. Boggs v. State, 928 N.E.2d 855,
864 (Ind. Ct. App. 2010), trans. denied. We consider only the probative evidence and
reasonable inferences supporting the verdict. Id. It is not necessary that the evidence
overcome every reasonable hypothesis of innocence; the evidence is sufficient if an
inference may reasonably be drawn from it to support the verdict. Id. We will affirm the
conviction unless no reasonable finder of fact could find the elements of a crime proven
beyond a reasonable doubt. Id.
5 B. Breath Alcohol Concentration
Porter contends that the State failed to prove that he was operating his motor
vehicle with at least 0.08 grams of alcohol per 210 liters of his breath as set out in the
statute.2 More specifically, he notes that Trooper Coffee testified at trial that Porter
registered 0.12% on the data master instrument and not 0.12 grams per 210 liters of
breath. Porter made a similar argument at trial. The trial court found the argument
“valid” but noted that the ticket produced by the data master and submitted into evidence
states that alcohol readings are expressed in grams of alcohol per 210 liters of breath as
required by the statute. See Transcript at 36. Now, Porter argues that the ticket which
indicates the correct unit is not sufficient evidence because there is no proof that the
machine had been certified properly due to the lack of testimony that the certificate
offered by the State was a certificate of the machine used to test Porter.3 We disagree.
While it is true that Trooper Coffee could not testify that the certificate admitted
into evidence was of the machine used on Porter at the time it was admitted, the
certificate indicates that it is of a data master machine located at Howard County
Sheriff’s Department. Trooper Coffee testified that he tested Porter at Howard County
Sheriff’s Department and that there is only one such machine located there. See Tr. at
18, 22. In addition, the certificate states that it is for an instrument with the serial number
of 202084 and the ticket produced by the data master instrument has the same serial
2 Porter was convicted of operating “a vehicle with an alcohol concentration equivalent to at least eight- hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per . . . two hundred ten (210) liters of the person’s breath” in violation of Indiana Code section 9-30-5-1(a). 3 Under Indiana Code section 9-30-6-5(c)(2), a certified copy of a certificate of inspection and compliance issued by the Indiana State Department of Toxicology is prima facie evidence that the equipment was inspected and approved and in proper working condition. Porter does not dispute this; he only contends that there was no proof that the certificate was for the machine used on Porter. 6 number along with Porter’s name and other identifying information. Thus, there was
sufficient evidence to prove that Porter was operating his motor vehicle with at least 0.08
grams of alcohol per 210 liters of his breath.
Conclusion
There was sufficient evidence to sustain Porter’s conviction and we therefore
affirm.
Affirmed.
MAY, J., and PYLE, J., concur.