State v. Brunner

• Decision Date: 26 May 2011
• Docket Number: No. 57S04–1010–CR–603.,57S04–1010–CR–603.
• Parties: STATE of Indiana, Appellant (Plaintiff below),v.Jeffrey BRUNNER, Appellee (Defendant below).
• Court: Indiana Supreme Court

947 N.E.2d 411

STATE of Indiana, Appellant (Plaintiff below),

v.Jeffrey BRUNNER, Appellee (Defendant below).

No. 57S04–1010–CR–603.

Supreme Court of Indiana.

May 26, 2011.

Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.Stacy R. Uliana, Indianapolis, IN, Attorney for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, 57A04–1003–CR–121.

DAVID, Justice.

On the defendant's motion, the trial court modified the defendant's conviction several years after the case had concluded. The Court of Appeals overturned the trial court on grounds that the trial court lacked statutory authority to modify the conviction and ordered the original conviction to be reinstated. We agree with the Court of Appeals and reverse the trial court's order. We hold it was in violation of statutory authority to modify the conviction. We remand to the trial court to reinstate the original conviction.

Facts and Procedural History

In August 2000, Jeffrey D. Brunner entered a plea of guilty to operating while intoxicated as a Class D felony. At the time of his guilty plea, Brunner had an OWI conviction within the previous five years which elevated the matter to a Class D felony. Brunner also had an OWI conviction from July 1991. When going over Brunner's constitutional rights, the trial court stated, “It is at least theoretically possible that a person found guilty of a Class D felony can have judgment of conviction entered and be sentenced as if it were a Class A misdemeanor.” The court further stated to Brunner, “Do you understand ... If I accept [the plea agreement] I am bound by it and I can't change it up or down.” The court then accepted Brunner's guilty plea and immediately conducted the sentencing hearing.

Thereafter, Brunner filed letters with the court requesting his conviction as a Class D felony be reduced to a Class A misdemeanor. In March 2009, the court held a hearing on Brunner's request for modification of the judgment of conviction from a Class D felony to a Class A misdemeanor. At the hearing, Brunner requested the trial court modify his third OWI felony conviction to a misdemeanor because he believed his felony conviction was preventing him from obtaining a second job.¹ Brunner neither served probation nor participated in any substance abuse treatment, but he served four-and-a-half months on work release for his sentence. At the March 2009 hearing, the trial court informed Brunner that it would be willing to modify his sentence to a misdemeanor if Brunner would submit to a substance abuse-assessment and complete any program of treatment or counseling recommended as a result of the assessment.

At the follow up hearing in October 2009, Brunner informed the trial court his substance-abuse assessment revealed he had no problems and provided no further recommendation for counseling or treatment. At this hearing, Brunner also admitted to having a disorderly conduct conviction from 2002. The trial court granted the motion to modify the judgment of conviction from a Class D Felony to a Class A misdemeanor. On October 16, 2009, the trial court entered an order titled “Modification of Conviction.” The order stated as follows:

Hearing held on the Defendant's Petition for Modification of his Conviction on 8–10–00, from a Class D Felony to a Class A Misdemeanor. The State appears by Special Prosecuting Attorney, Clara Mary Winebrenner. The Defendant appears in person and without Counsel. Evidence and arguments had and concluded. The Court now modifies the judgment of conviction in this cause to Driving While Intoxicated, Second or Subsequent Conviction, as a Class A Misdemeanor, pursuant to Indiana Code 35–50–2–7(b).

We granted transfer to address issues of jurisdiction and law. We hold this matter was properly pleaded under the statutes governing the modification of a conviction. We disagree with the Court of Appeals holding that defendant's request was a petition for post-conviction relief; however, we agree with the Court of Appeals and hold that the trial court's authority to reduce a Class D felony conviction to a Class A misdemeanor is limited to the moment of conviction and prior to sentencing.

I. State's Right to Appeal

The Court of Appeals, sua sponte, raised the issue, which was then fully briefed by both parties, whether the State had a right to appeal the trial court's modification of conviction.

The action taken by Brunner was a motion for modification of conviction, not a request for post-conviction relief. While reaching the correct conclusion, the Court of Appeals mistakenly described this action as a request for post-conviction relief under Post–Conviction Relief Rule 1(1)(a)(4), indicating there was evidence of material facts not previously presented and heard that requires vacation of the conviction or sentence in the interest of justice. The post-conviction relief rule cited by the Court of Appeals is not a catch-all mechanism allowing for the introduction of new evidence that occurs after the conviction. The range of relief provided under the post-conviction rules is limited to “issues that were not known at the time of the original trial or that were not available on direct appeal.” Ben–Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.2000). This Court has held that “the purpose of the post-conviction remedies is to give the appellant an opportunity to raise issues that were unknown or unavailable to him at the time of his original appeal.” Henderson v. State, 271 Ind. 633, 634, 395 N.E.2d 224, 226 (1979). We have previously assigned a test for new evidence brought under Post–Conviction Relief Rule 1(1)(a)(4):

the petitioner must establish (1) that the evidence has been discovered since the trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is not merely impeaching; (5) that it is not privileged or incompetent; (6) that due diligence was used to discover it in time for trial; (7) that the evidence is worthy of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will probably produce a different result.

Torrence v. State, 263 Ind. 202, 206, 328 N.E.2d 214, 216 (1975) (quoting Emerson v. State, 259 Ind. 399, 407, 287 N.E.2d 867, 871–72 (1972)). Clearly the new evidence of Brunner's recent sobriety, while laudable, will not produce a different result at trial. He is still guilty of the crime committed, and he has not produced evidence that would likely end in a different result of conviction. The post-conviction rules do not apply to evidence of a person's reformed character. The post-conviction rules were not intended to give defendants a super-appeal. McCary v. State, 761 N.E.2d 389, 391 (Ind.2002).

Further, a court that hears a post-conviction claim must make findings of fact and conclusions of law on all issues presented. Ind. Post–Conviction Rule 1(6). Here the trial court failed to issue findings of fact and conclusions of law. In sum, this matter was never pleaded as a post-conviction petition, and the post-conviction rules do not allow for this type of evidence to be submitted. At all stages, this matter proceeded as a motion for modification of conviction. Neither the unrepresented pro se defendant Brunner, nor the prosecutor, nor the trial court referred to this matter in the record as anything but a motion to modify conviction, which the prosecutor argued the trial court had no authority to grant. The prosecutor was correct.

Indiana has a strict historic precedent that criminal appeals by the State are statutorily defined. Indiana Code section 35–38–4–2 sets out the instances the State may appeal. The legislature expressly enumerates the criminal appeals the State may take. The State may appeal from orders (1) granting a motion to dismiss an indictment; (2) granting judgment for the defendant upon his motion to discharge because of delay or jeopardy; (3) granting a motion to correct errors; (4) upon question reserved the state if defendant is acquitted; (5) granting motion to suppress evidence, if the effect is to preclude further prosecution; (6) and certain interlocutory orders. Ind.Code § 35–38–4–2 (2008).

We have long recognized this bedrock fundamental of criminal appellate law: the State must have statutory authorization to bring an appeal of a criminal matter. The right of the State to appeal in a criminal matter is statutory, and the State cannot appeal unless given that statutory authorization by the legislature. State v. Huebner, 233 Ind. 566, 567, 122 N.E.2d 88, 89 (Ind.1954). The reason for such a rigid appellate right for the State is built upon the idea that if the State brings a citizen before its own tribunal and loses, “its avenging hand should be stayed except in unusual cases where the power to appeal was expressly conferred.” State v. Sierp, 260 Ind. 57, 60, 292 N.E.2d 245, 246 (1973) (citing Carl V. Venters, Annotation, Right of Prosecution To Review of Decision Quashing or Dismissing Indictment or Information, or Sustaining Demurrer Thereto, 92 A.L.R. 1137 (1934)). In Brunner's instance, however, it is not the State that has brought him back before the tribunal. Not this time. Rather, it is Brunner himself who has petitioned the tribunal for favorable relief.

In Hardley v. State, this Court carved out a minor exception to the precedent of legislature-authorized appeals for State criminal appeals. 905 N.E.2d 399, 403 (Ind.2009). In Hardley, the State was attempting to appeal an erroneous sentence, which is not enumerated among the criminal appeals the State may take under Indiana Code section 35–38–4–2. This Court succinctly held that it was clearly unacceptable for a sentence to plainly exceed or otherwise violate statutory authority, and that “sound policy and judicial economy favor permitting the State to present claims of illegal sentence on appeal when the issue is a pure question of law that does not...