Abernathy v. Gulden, No. 45A03–1503–MI–73.

Docket NºNo. 45A03–1503–MI–73.
Citation46 N.E.3d 489
Case DateNovember 30, 2015
CourtCourt of Appeals of Indiana

46 N.E.3d 489

Kent W. ABERNATHY, Commissioner of the Indiana Bureau of Motor Vehicles and Bernard Carter, Prosecuting Attorney for Lake County, Appellants–Respondents
v.
Eric C. GULDEN, Jeremy Crawford, David J. Klahn, John P. Martin, and James M. Panozzo, Appellees–Petitioners.

No. 45A03–1503–MI–73.

Court of Appeals of Indiana.

Nov. 30, 2015.


46 N.E.3d 491

Gregory F. Zoeller, Attorney General of Indiana, Frances H. Barrow, Aaron T. Craft, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellants.

Marce Gonzalez, Jr., Dyer, IN, Attorney for Appellees.

RILEY, Judge.

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 BMV's motions to correct error, and in one case, the BMV's 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 BMV's 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 prior to the effective date of subsection 4(e) but whose third judgment 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 operating while intoxicated and judgment was entered on November 27, 2002. He committed the offense of operating while intoxicated endangering a person on December 30,

[46 N.E.3d 492

2007, with judgment entered on July 3, 2008. Thereafter, on August 22, 2011, Klahn committed the offense of prior operating while intoxicated within five years, and the trial court entered judgment on October 4, 2013. The BMV informed Klahn of his HTV status and ten-year license suspension by notice dated October 19, 2013. On July 16, 2014, Klahn filed a petition for judicial review of his HTV determination.

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.1 The trial court noted—without any references to case law—that this statute previously required reliance on the conviction dates to determine whether the three qualifying offenses fell within the ten-year time period for the HTV determination. On July 1, 2012, a new subsection 4(e) of the statute took effect which provided that the date of the commission of the offense, rather than the judgment date, is determinative to calculate the ten-year time limitation. Although the time between each Appellee's first and third qualifying conviction exceeded ten years, at least one of each Appellee's judgments was entered after the amendment took effect. Thus, when the HTV status was triggered by the third judgment, the BMV used the dates of the offense rather than the judgment dates to determine each Appellee's HTV status. The trial court concluded that this retroactive application of subsection 4(e) to each Appellee violated the ex post facto clauses of the United States and Indiana Constitutions. The BMV filed a motion to correct error in the cause of Gulden, Klahn, Martin, and Panozzo, and a motion for relief from judgment in Crawford's cause. In each cause, the BMV argued that because the purpose of the HTV statute was public safety and health rather than punishment, the ex post facto clause was not applicable. The trial court denied the BMV's motion in each cause.

[46 N.E.3d 493

[10] The BMV now appeals these five judgments, which we consolidated on appeal. Additional facts will be provided as necessary.

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), reh'g 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 § 9–30–10–4

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.
* * *
(5) Reckless driving.
* * *
(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...

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3 practice notes
  • State v. Wolfe, CC 19CR34514 (SC S067623)
    • United States
    • Supreme Court of Oregon
    • May 6, 2021
    ...support its position. Tyson v. State , 51 N.E.3d 88 (Ind 2016) ; Stroud v. State , 809 N.E.2d 274 (Ind 2004) ; Abernathy v. Gulden , 46 N.E.3d 489 (Ind.Ct. App. 2015) ; Minton v. State , 802 N.E.2d 929 (Ind.Ct. App. 2004). In Cookman , recognizing that the Indiana constitution was the basis......
  • Butler v. State, Court of Appeals Case No. 19A-MI-5
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 2019
    ...(Ind. 2004), reh'g denied , cert. denied 546 U.S. 828, 126 S. Ct. 42, 163 L. Ed. 2d 76 (2005) ), trans. denied . Abernathy v. Gulden , 46 N.E.3d 489, 495 (Ind. Ct. App. 2015). Without addressing the question of whether the 2018 Amendments cured the constitutional infirmities identified by t......
  • Mainstreet Prop. Grp., LLC v. Pontones, Court of Appeals Case No. 29A02–1704–MI–871
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 2018
    ...stands before us clothed with the presumption of constitutionality until clearly overcome by a contrary showing." Abernathy v. Gulden , 46 N.E.3d 489, 493 (Ind. Ct. App. 2015). The party challenging the constitutionality of the statute bears the burden of making that showing, and all doubts......
3 cases
  • State v. Wolfe, CC 19CR34514 (SC S067623)
    • United States
    • Supreme Court of Oregon
    • May 6, 2021
    ...support its position. Tyson v. State , 51 N.E.3d 88 (Ind 2016) ; Stroud v. State , 809 N.E.2d 274 (Ind 2004) ; Abernathy v. Gulden , 46 N.E.3d 489 (Ind.Ct. App. 2015) ; Minton v. State , 802 N.E.2d 929 (Ind.Ct. App. 2004). In Cookman , recognizing that the Indiana constitution was the basis......
  • Butler v. State, Court of Appeals Case No. 19A-MI-5
    • United States
    • Indiana Court of Appeals of Indiana
    • December 27, 2019
    ...(Ind. 2004), reh'g denied , cert. denied 546 U.S. 828, 126 S. Ct. 42, 163 L. Ed. 2d 76 (2005) ), trans. denied . Abernathy v. Gulden , 46 N.E.3d 489, 495 (Ind. Ct. App. 2015). Without addressing the question of whether the 2018 Amendments cured the constitutional infirmities identified by t......
  • Mainstreet Prop. Grp., LLC v. Pontones, Court of Appeals Case No. 29A02–1704–MI–871
    • United States
    • Indiana Court of Appeals of Indiana
    • March 13, 2018
    ...stands before us clothed with the presumption of constitutionality until clearly overcome by a contrary showing." Abernathy v. Gulden , 46 N.E.3d 489, 493 (Ind. Ct. App. 2015). The party challenging the constitutionality of the statute bears the burden of making that showing, and all doubts......

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