FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN D. FIEREK GREGORY F. ZOELLER
Voyles, Zahn, Paul, Hogan & Merriman Attorney General of Indiana
Indianapolis, Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
FILED
Feb 01 2013, 9:24 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
TRAVIS KOONTZ, )
)
Appellant-Defendant, )
)
vs. ) No. 29A05-1202-CR-77
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Gail Bardach, Judge
Cause No. 29D06-1101-CM-669
February 1, 2013
OPINION ON REHEARING - FOR PUBLICATION
ROBB, Chief Judge
In Koontz v. State, 975 N.E.2d 846 (Ind. Ct. App. 2012), we held that Travis
Koontz waived any claim of an illegal sentence by entering into a plea agreement which
reduced his penal exposure. Id. at 849-50 (Baker, J., dissenting). Both Koontz and the
State of Indiana have filed petitions for rehearing. We grant the petitions for the purpose
of correcting a misstatement of the law, but reaffirm our original disposition.
Koontz was charged with driving while suspended, a Class A misdemeanor, false
informing, a Class B misdemeanor, operating a vehicle while intoxicated, a Class C
misdemeanor, and operating a vehicle with an alcohol concentration equivalent (“ACE”)
of .08 or more, a Class C misdemeanor. He and the State entered into a plea agreement
by which Koontz pleaded guilty to driving while suspended and operating with an ACE
of .08 or more, and the State dismissed the remaining charges. The trial court accepted
the plea agreement and imposed the agreed upon sentence: 365 days in jail with eighteen
days executed and 365 days of probation for the Class A misdemeanor, to be served
concurrently with sixty days in jail with eighteen days executed and 365 days of
probation for the Class B misdemeanor. Upon violating his probation several months
later, Koontz filed a motion to correct erroneous sentence alleging the sentence was
erroneous on its face because the combined term of imprisonment and period of
probation exceeded a statutory one year limitation. In discussing whether Koontz had
benefitted from his plea agreement such that he should be held to the bargain, illegal
sentence notwithstanding, we noted several things: all of the charges against him were
misdemeanors; two of the four charges against him were dismissed, including the second-
most serious of the charges; and the trial court could have imprisoned him up to one year
2
had it had discretion in sentencing, but pursuant to the agreement, he was to serve just
eighteen days of a one-year sentence. We also stated:
[B]eing convicted of the per se offense rather than operating while
intoxicated reduces Koontz’s exposure if he were to be arrested again for
operating while intoxicated. See Ind. Code § 9-30-5-3 (stating that a person
violating the operating while intoxicated or operating with an ACE of .08
or more commits a Class D felony if the person has a previous conviction
of operating while intoxicated within five years).
Id. at 850 (emphasis in original).
As both parties have pointed out, this is a misstatement of the law. Indiana Code
section 9-30-5-2 defines “operating a vehicle while intoxicated” separately from the per
se offense defined in section 9-30-5-1. However, “previous conviction of operating while
intoxicated” is also a term defined by the Indiana Code, and it includes offenses under
sections 9-30-5-1 through -9. Ind. Code § 9-13-2-130. Therefore, even a conviction of
the per se offense would subject Koontz to a Class D felony charge if he were to commit
another operating while intoxicated offense within five years of this conviction.
Accordingly, we grant the parties’ petitions for rehearing and strike the above language
from our original opinion.
Even without this consideration, however, the other factors we mentioned remain
viable and we continue to believe that, given the circumstances in which Koontz was
charged with all misdemeanors, two of the four misdemeanors were dismissed, and
Koontz agreed to the sentence as part of his plea agreement, he has waived any illegality
in the sentence. Accordingly, we again affirm the trial court’s denial of his motion to
correct erroneous sentence.
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BRADFORD, J., concurs.
BAKER, J., would reverse as previously stated in his dissenting opinion.
4