State Of Ind. v. Brunner

• Decision Date: 06 August 2010
• Docket Number: No. 57A04-1003-CR-121,No. 57D01-9911-DF-260,57A04-1003-CR-121,57D01-9911-DF-260
• Parties: STATE OF INDIANA,Appellant-Plaintiff, v. JEFFREY BRUNNER, Appellee-Defendant.
• Court: Court of Appeals of Indiana

STATE OF INDIANA, Appellant-Plaintiff,

v.JEFFREY BRUNNER, Appellee-Defendant.

No. 57A04-1003-CR-121

No. 57D01-9911-DF-260

Court Of Appeals Of Indiana

Date: August 6, 2010

ATTORNEYS FOR APPELLANT:

GREGORY F. ZOELLER

CYNTHIA L. PLOUGHE

ATTORNEY FOR APPELLEE:

STACY R. ULIANA

APPEAL FROM THE NOBLE SUPERIOR COURT

The Honorable Robert E. Kirsch, Judge

OPINION-FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE

The State appeals the trial court's October 2009 order modifying Jeffrey D. Brunner's August 2000 conviction from a Class D felony to a Class A misdemeanor. The parties raise two issues for our review:

1. Whether the State's appeal is authorized by law.

2. Whether the trial court erred in granting Brunner's petition for relief.

We hold that Brunner's request, nine years after the trial court's entry of judgment, to reduce the Class D felony to a Class A misdemeanor was a petition for post-conviction relief, from which the State may appeal. We also hold that Indiana Code Section 35-50-2-7(b) does not authorize the relief granted. As such, we reverse and remand with instructions.

FACTS AND PROCEDURAL HISTORY

In November of 1999, the State charged Brunner with operating a vehicle while intoxicated, as a Class D felony. On August 10, 2000, Brunner pleaded guilty to the Class D felony charge. Brunner agreed to leave his sentence open to the trial court's discretion so long as the executed portion of his sentence did not exceed nine months and eight days. That same day, the trial court accepted Brunner's guilty plea and sentenced him to one and one-half years, with nine months executed. The August 2000 conviction was Brunner's third conviction for operating a vehicle while intoxicated ("OWI").

On December 26, 2007, Brunner sent a letter to the trial court under the cause number for his August 2000 conviction. In that letter, Brunner asked the court to "change... the above felony conviction to a misdemeanor." Appellant's App. at 32. Insupport of his petition, Brunner asserted that he had had "no other problems with law enforcement: not a conviction, arrest, or even a traffic ticket" in the ensuing seven years. Id. Brunner then stated that his felony conviction has "played some part in my inability to secure a new job," which, in turn, prevented him from fully supporting his wife and two children. Id.

On April 14, 2008, the State filed its objection to Brunner's "motion to modify." Id. at 35. The State noted that the August 2000 conviction was Brunner's "third OWI." Id. The State also noted that "the modification down to a misdemeanor was not contemplated in the Plea, and the time has run during which the Court can do it without the State's permission." Id. On June 3, the trial court held a hearing on Brunner's request, after which it denied the request.

On January 15, 2009, Brunner refiled his letter. The State refiled its response, and the court held a hearing. After the hearing, the court "continue[d] the hearing without date to be reset at the request of either party." Id. at 4-5. The court did not enter an order either granting or denying Brunner's second request.

On September 16, 2009, Brunner filed a third, and substantially similar, letter. The State filed its response on September 28. The court held another hearing on October 16, after which it granted Brunner's request to change his conviction from a Class D felony to a Class A misdemeanor "pursuant to Indiana Code [§] 35-50-2-7(b)." Id. at 45. This appeal ensued.

DISCUSSION AND DECISION

Issue One: State's Authority to Appeal

Before considering the merits of the State's appeal, we address Brunner's contention that the State's appeal is not authorized by law. It has long been the law in Indiana that the State's right to appeal in a criminal action is statutory and, unless there is a specific grant of such authority by the legislature, the State cannot appeal. State v. Huebner, 233 Ind. 566, 567, 122 N.E.2d 88, 89 (1954). It is also true that "[t]he legislature has enumerated several situations in which criminal appeals by the State 'may be taken.'" Hardley v. State, 905 N.E.2d 399, 401 (Ind. 2009) (quoting Ind. Code § 35-38-4-2)). For example, Indiana Code Section 35-38-4-2 authorizes the State to file an appeal in the following situations:

(1) From an order granting a motion to dismiss an indictment or information.

(2) From an order or judgment for the defendant, upon his motion for discharge because of delay of his trial not caused by his act, or upon his plea of former jeopardy, presented and ruled upon prior to trial.

(3) From an order granting a motion to correct errors.

(4) Upon a question reserved by the state, if the defendant is acquitted.

(5) From an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution.

(6) From any interlocutory order if the trial court certifies and the court on appeal or a judge thereof finds on petition that:

(A) the appellant will suffer substantial expense, damage, or injury if the order is erroneous and the determination thereof is withheld until after judgment;(B) the order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the case; or

(C) the remedy by appeal after judgment is otherwise inadequate.

See also Hardley, 905 N.E.2d at 402-03 (holding that Indiana Code Section 35-38-1-15 authorizes the State to appeal illegal sentences); State v. Fulkrod, 753 N.E.2d 630, 632-33 (Ind. 2001) (reviewing the State's appeal, pursuant to Indiana Code Section 35-38-1-17, that the trial court erroneously modified the defendant's sentence).

Here, Brunner asserts that the State's appeal is not authorized by any section of the Indiana Code. The State does not directly refute that assertion, but, instead, contends that Hardley and Fulkrod authorize this appeal. We cannot agree with the State's rationale; Hardley and Fulkrod involved challenges to either an illegal sentencing order or the modification of a defendant's sentence after the trial court had already sentenced him. See Hardley, 905 N.E.2d at 402-03; Fulkrod, 753 N.E.2d at 632-33. Brunner, on the other hand, did not receive an illegal sentence or a modification of his sentence. Rather, he sought, and the trial court granted, a modification of his underlying judgment of conviction.

To determine whether the State has the right to appeal the trial court's action in this case requires that we first determine the nature of Brunner's request for relief. Brunner's request sought to vacate the Class D felony judgment and, in its place, entry of a judgment of conviction for a Class A misdemeanor. Brunner based his petition on facts not originally before the trial court, namely, his allegedly clean record since his 2000 conviction, his difficulty in finding a job since then due to his status as a felon, and hisrelated inability to support his family. The trial court held a hearing on Brunner's request and, subsequently, the court issued its judgment granting the relief sought.

If this were a civil action, Brunner's request would be considered a petition to modify judgment under Indiana Trial Rule 60(B). See Gertz v. Estes, 922 N.E.2d 135, 138 (Ind. Ct. App. 2010) (stating that a "petition for modification of the judgment is, in effect, a motion for relief from judgment under Indiana Trial Rule 60(B)"). But this is a criminal matter, not a civil one. See Van Meter v. State, 650 N.E.2d 1138, 1138 (Ind. 1995) ("Generally, our Trial Rules govern procedure and practice in civil cases only.") As such, Brunner's motion was, quite literally, a request for post-conviction relief. Thus, we turn to our rules governing such claims. See id.

Post-Conviction Rule 1 defines the conditions for post-conviction relief. In relevant part, it states as follows:

(a) Any person who has been convicted of, or sentenced for, a crime by a court of this state, and who claims:

(1) that the conviction or the sentence was in violation of the Constitution of the United States or the constitution or laws of this state;

(2) that the court was without jurisdiction to impose sentence;

(3) that the sentence exceeds the maximum authorized by law, or is otherwise erroneous;

(4) that there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;

(5) that his sentence has expired, his probation, parole or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint;(6) that the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;

may institute at any time a proceeding under this Rule to secure relief.

(b) This remedy is not a substitute for a direct appeal from the conviction and/or the sentence and all available steps including those under Rule PC 2 should be taken to perfect such an appeal. Except as otherwise provided in this Rule, it comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the validity of the conviction or sentence and it shall be used exclusively in place of them....

Ind. Post-Conviction Rule 1(1) (emphases added).

That language is clear and applies here to Brunner's request to the trial court. Again, Brunner claimed that new facts justified the vacation of his Class D felony conviction and entry of a judgment of conviction as a Class A misdemeanor in the interests of justice, which is grounds for a petition for post-conviction relief under PostConviction Rule 1(1)(a)(4). Further, Brunner's petition is not a motion for relief from judgment under Trial Rule 60(B) because Post-Conviction Rule 1(1)(b) expressly "comprehends and takes the place of all other common law, statutory, or other remedies heretofore available for challenging the...