Apr 09 2015, 9:14 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Kenneth E. Biggins
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terrence Strong, April 9, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1406-CR-412
v.
Appeal from the Marion Superior
State of Indiana, Court
The Honorable Kimberly J. Brown,
Appellee-Plaintiff,
Judge
Cause No. 49F07-1108-CM-60947
Robb, Judge.
Case Summary and Issues
[1] Following a bench trial, Terrence Strong was convicted of operating a vehicle
while intoxicated (“OWI”), a Class A misdemeanor, and sentenced to 365
days, all but ninety days suspended to probation. He was also found to have
committed the traffic infraction of failing to stop at a stop sign, for which a fine
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was imposed. Strong did not file a notice of appeal within thirty days of the
final judgment in his case, but he was later granted permission to file a belated
notice of appeal. Strong now raises the sole issue of whether his traffic
infraction and fine must be vacated because he was subjected to double
jeopardy in violation of the Indiana Constitution. The State cross-appeals,
contending the trial court improperly granted Strong’s motion to file a belated
notice of appeal. Concluding the trial court did not abuse its discretion in
allowing Strong to file a belated notice of appeal but that Strong was not subject
to double jeopardy, we affirm.
Facts and Procedural History
[2] In the afternoon of August 26, 2011, Indianapolis Metropolitan Police
Department Officer Timothy Elliott was driving west on 38th Street. When he
was within a block of the intersection with Denwood Drive, he observed Strong
turn right from Denwood Drive into the left-most lane of westbound 38th Street
without stopping. Officer Elliott was forced to slam on his brakes to avoid
colliding with Strong. Because Officer Elliott believed Strong had failed to stop
at a stop sign and had improperly changed lanes, he initiated a traffic stop
during which he noticed Strong exhibited signs of intoxication. A subsequent
chemical test showed Strong had a blood alcohol concentration of .10.
[3] The State charged Strong with OWI, a Class A misdemeanor; operating a
vehicle with an alcohol concentration between 0.08 and 0.15 grams of alcohol
per 100 milliliters of blood, a Class C misdemeanor; and failing to stop at a stop
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sign, a Class C infraction. Following a bench trial, Strong was found guilty of
all charges on July 30, 2013. The trial court merged the two operating
convictions, sentencing Strong to one year for the Class A misdemeanor, all
suspended to probation but for ninety days to be served in community
corrections. The trial court also imposed fines and costs of $100 with respect to
the traffic infraction. Those fines and costs were later reduced to $1.00.
[4] On March 28, 2014, Strong filed a Verified Motion to Set Hearing Regarding
Permission to File a Belated Notice of Appeal. The trial court granted the
motion and held a hearing on May 2, 2014, at which Strong demonstrated that
neither his attorney nor the trial court advised him of his right to appeal his
convictions and sentence. At the conclusion of the hearing, the trial court
granted his motion to file a belated notice of appeal and stated he had thirty
days from May 2, 2014 in which to file his notice of appeal.
[5] On June 5, 2014, Strong filed a Verified Second Motion for Leave to File a
Belated Notice of Appeal, alleging that Strong’s Belated Notice of Appeal was
not filed on or before June 2, 2014 because “[d]ue to a failure of the internal
processes within the Appellate Division of the Marion County Public Defender
Agency, Mr. Strong’s file was misplaced. This error . . . is entirely the fault of
counsel and the Marion County Public Defender Agency Appellate Division
and not of Mr. Strong.” Appellant’s App. at 60. On June 6, 2014, the trial
court granted the second motion and ordered “that [Strong] is again granted
leave to file a Belated Notice of Appeal as of the date of this Order[.] Said
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Notice of Appeal shall be filed no later than 7-6-14.” Id. at 62. Strong filed his
Belated Notice of Appeal on June 16, 2014.
Discussion and Decision
I. Belated Notice of Appeal
[6] We first address the State’s cross-appeal issue: whether the trial court properly
granted Strong permission to file a belated notice of appeal. Indiana Post-
Conviction Rule 2 provides:
Eligible defendant defined. An “eligible defendant” for purposes of this
Rule is a defendant who, but for the defendant’s failure to do so
timely, would have had the right to challenge on direct appeal a
conviction or sentence after a trial or plea of guilty by filing a notice of
appeal, filing a motion to correct error, or pursuing an appeal.
***
Section 1. Belated Notice of Appeal
(a) Required Showings. 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.
[7] Because the trial court held a hearing on Strong’s motion to file a belated notice
of appeal, we review the trial court’s ruling for an abuse of discretion. Cole v.
State, 989 N.E.2d 828, 830 (Ind. Ct. App. 2013), trans. denied. The defendant
bears the burden of proving by a preponderance of the evidence that he was
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without fault in the delay and was diligent in pursuing permission to file his
belated notice of appeal. Id. As there are no set standards for showing lack of
fault or diligence, each case turns on its own facts. Moshenek v. State, 868
N.E.2d 419, 423 (Ind. 2007). However, relevant factors to be considered
include: “the defendant’s level of awareness of his procedural remedy, age,
education, familiarity with the legal system, whether the defendant was
informed of his appellate rights, and whether he committed an act or omission
which contributed to the delay.” Id. (citation omitted). “Because diligence and
relative fault are fact sensitive, we give substantial deference to the trial court’s
ruling.” Id.
[8] The State first alleges that Strong failed to prove that he had been diligent in
pursuing his appeal. At the hearing on his motion for permission to file a
belated notice of appeal, Strong testified that neither the trial court nor his trial
counsel made him aware of his appellate rights. The transcript of his
sentencing hearing, which was admitted into evidence, and the testimony of his
trial counsel support his statements. In addition, Strong testified that it was his
wish to appeal his conviction and sentence and had he been advised of his
appellate rights, he would have done so in a timely fashion. The State did not
cross-examine Strong to elicit information about his independent awareness of
his appellate rights, his education, or his familiarity with the legal system, and
in fact, we are made aware of no opposition at all from the State with respect to
Strong’s initial request for permission to file a belated notice of appeal. Upon
receiving permission to file a belated notice of appeal, Strong’s file was lost
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through no fault of his own and his belated notice of appeal was not timely
filed. Within just a few days of the missed deadline, however, he again sought
permission to file a belated notice of appeal. By all accounts, Strong acted
without fault and with personal diligence in pursuing permission to file a
belated notice of appeal.
[9] The State also alleges, in a footnote, that because Strong challenges his traffic
infraction and fine, which is a civil penalty, he does not qualify as an “eligible
defendant” under Post-Conviction Rule 2 for purposes of pursuing this appeal.
An “eligible defendant” is one who, but for his failure to do so in a timely
manner, would have the “right to challenge on direct appeal a conviction or
sentence after a trial or plea of guilty . . . .” Ind. Post-Conviction Rule 2. The
State argues, and the dissent agrees, that Strong is not challenging a conviction
or sentence and that his appeal brought under the authority of Post-Conviction
Rule 2 should be dismissed.1 We disagree.
[10] Strong’s case as a whole was designated below as a criminal misdemeanor case,
because in addition to the traffic infraction, Strong was alleged to have operated
1
The dissent also notes that Post-Conviction Rule 1 provides that the remedy of post-conviction relief is
available to a person who has been convicted of a crime and does not believe Strong falls within the purview
of the post-conviction rules because a traffic infraction is not a “crime.” Post-Conviction Rule 1 provides that
“[a]ny person who has been convicted of, or sentenced for, a crime by a court of this state . . . may institute at
any time a proceeding under this Rule to secure relief.” P-C.R. 1(1)(a). Rule 1 further states that “[t]his
remedy is not a substitute for direct appeal from the conviction and/or sentence and all available steps
including those under Rule PC 2 should be taken to perfect such an appeal.” P-C.R. 1(1)(b) (emphasis added).
Although Strong seeks a post-conviction remedy, he has not filed a petition for post-conviction relief under
Rule 1 and Post-Conviction Rule 1(1)(b) makes it clear that the remedies available under Rules 1 and 2 are
separate. We therefore do not believe that whether a traffic infraction can be defined as a “crime” is
determinative.
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a vehicle while intoxicated and/or with a blood alcohol content in excess of
.08, both misdemeanors. Therefore, we cannot view the traffic infraction in
isolation just because vacating that infraction and ensuing fine is the relief
Strong requests. He requests that relief because the infraction is allegedly in
violation of double jeopardy principles when considered in conjunction with his
misdemeanor conviction.2
[11] Moreover, even if we do view the infraction in isolation, the Rules of Appellate
Procedure governing a direct appeal classify Strong’s case as a criminal appeal.
Appellate Rule 2(G) defines “Criminal Appeals” as “those cases which were
designated by the originating court as . . . Criminal Misdemeanor – CM; . . .
Infraction – IF . . . .” Traffic infractions may be civil proceedings by statute,
State v. Hurst, 688 N.E.2d 402, 405 (Ind. 1997), overruled on other grounds by Cook
v. State, 810 N.E.2d 1064 (Ind. 2004), but they are nonetheless classified as
criminal for purposes of appeal, cf. Cunningham v. State, 835 N.E.2d 1075, 1079
n.4 (Ind. Ct. App. 2005) (noting that although traffic violations are not criminal
proceedings, they remain “quasi-criminal” in nature in the sense that the
procedures through which they are adjudicated “bear a likeness to those
procedures employed in adjudicating criminal offenses”; for example, they are
enforced by police, initiated and litigated by a prosecuting attorney, and
2
We also note that the trial court could not have improperly granted Strong’s motion to file a belated notice
of appeal for this reason because the trial court did not know – and did not have to know – what issues
Strong would be raising on appeal.
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violators are fined by the government), trans. denied. Strong should be entitled
to the benefit of Post-Conviction Rule 2 as in other criminal appeals.
[12] Finally, even if Strong’s appeal should be treated as a civil appeal despite the
overall nature of the case and the designation given to it by the Appellate Rules
such that Post-Conviction Rule 2 does not provide a viable avenue for filing a
belated notice of appeal, In re Adoption of O.R. would offer him an opportunity
to demonstrate “extraordinarily compelling reasons” justifying the filing of a
belated notice of appeal. 16 N.E.3d 965, 971-72 (Ind. 2014). The trial court, in
twice granting Strong’s motions to file a belated notice of appeal, must have
found compelling reasons to do so, and we give substantial deference to its
decision.
[13] For the foregoing reasons, we hold the trial court’s decision to grant Strong
permission to file a belated notice of appeal was not an abuse of discretion. We
further reject the State’s invitation to dismiss and instead consider Strong’s
appeal on its merits.
II. Double Jeopardy
[14] Strong contends there is a reasonable possibility that evidence of a single act—
failure to stop at a stop sign—was used to prove that he committed a traffic
infraction and also to establish endangerment supporting the elevation of the
OWI offense from a Class C misdemeanor to a Class A misdemeanor.
[15] Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall
be put in jeopardy twice for the same offense.” “[T]wo or more offenses are the
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‘same offense’ in violation of Article 1, Section 14 of the Indiana Constitution
if, with respect to either the statutory elements of the challenged crimes or the
actual evidence used to convict, the essential elements of one challenged offense
also establish the essential elements of another challenged offense.” Cross v.
State, 15 N.E.3d 569, 571 (Ind. 2014) (quoting Richardson v. State, 717 N.E.2d
32, 49 (Ind. 1999) (emphasis in original)). We review double jeopardy claims
de novo. Calvert v. State, 14 N.E.3d 818, 822 (Ind. Ct. App. 2014).
[16] Strong contends his OWI conviction and traffic infraction violate the actual
evidence test. Under the actual evidence test,
we examine the actual evidence presented at trial in order to determine
whether each challenged offense was established by separate and
distinct facts. To find a double jeopardy violation . . ., we must
conclude that there is a reasonable possibility that the evidentiary facts
used by the fact-finder to establish the essential elements of one offense
may also have been used to establish the essential elements of a second
challenged offense.
Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (quotation omitted). The
double jeopardy clause is not violated when the evidentiary facts establishing
the essential elements of one offense also establish only one or even several, but
not all, of the essential elements of a second offense. Id. Determining the
existence of a “reasonable possibility” requires a “practical assessment of
whether the [fact finder] may have latched on to exactly the same facts for both
convictions.” Id. at 720 (alteration in original).
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[17] Assuming that Strong was placed in jeopardy with respect to his traffic
infraction such that it could be vacated on double jeopardy grounds,3 there is no
need to do so here. To prove Strong violated Indiana Code section 9-21-8-32,
the State had to establish by a preponderance of the evidence that Strong failed
to make a proper stop at a stop sign.4 To convict Strong of OWI, the State had
to prove beyond a reasonable doubt that Strong operated his vehicle while
intoxicated in a manner that endangered any person. Ind. Code § 9-30-5-2(b).
Some evidence beyond intoxication is required to prove the endangerment
element. Outlaw v. State, 918 N.E.2d 379, 381-81 (Ind. Ct. App. 2009), adopted
by 929 N.E.2d 196 (Ind. 2010). As noted above, Strong asserts that the
evidence of endangerment is that he did not stop at the stop sign on Denwood
Avenue before turning onto 38th Street and thus, the evidentiary facts
3
In State v. Hurst, our supreme court noted under federal double jeopardy analysis that “jeopardy” is not
limited to criminal punishments: “nominally ‘non-criminal’ sanctions” can be a jeopardy if “the sanction is
so punitive in effect that it can no longer be said to serve the remedial purposes of a civil sanction.” 688
N.E.2d at 404. Hurst confronted the question of whether the imposition of a fine for committing the
infraction of failure to yield the right-of-way precluded a subsequent prosecution for reckless homicide arising
out of the same act. Finding that the legislature intended traffic infractions to be civil proceedings, that the
enforcement of the failure to yield statute serves several remedial purposes, that the statute lacks a scienter
requirement, and that the fine and court costs of approximately $60 was not grossly disproportionate, the
court held “that defendant’s fine for violation of the failure to yield the right-of-way statute did not constitute
a first jeopardy under the [federal] Double Jeopardy Clause.” Id. at 406. Because the defendant had not yet
been criminally prosecuted and placed in jeopardy for his actions, the reckless homicide prosecution could
proceed and the court did not address whether failure to yield the right-of-way and reckless homicide were
the same offense. Id. Hurst was decided prior to Richardson announcing a separate double jeopardy test
under the Indiana Constitution and no case has since discussed this issue under the state analysis.
4
The statute reads that “[a] person who drives a vehicle shall stop at an intersection where a stop sign is
erected at one (1) or more entrances to a through highway that are not part of the through highway and
proceed cautiously, yielding to vehicles that are not required to stop.”
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establishing the essential elements of OWI established all of the essential
elements of the infraction.
[18] Officer Elliott did testify that Strong failed to stop at a stop sign before turning.
However, he also testified that Strong made an improper lane change when he
made a right hand turn into the lane closest to the center line rather than the
lane closest to the curb, pulling into the path of Officer Elliott’s vehicle and
requiring Officer Elliott to abruptly apply his brakes to avoid a collision. See
Ind. Code § 9-21-8-21(a)(1) (“A person who drives a vehicle intending to turn at
an intersection must do the following: [m]ake both the approach for a right
turn and a right turn as close as practical to the right-hand curb or edge of the
roadway.”). This evidence supports the endangerment element of Strong’s
Class A misdemeanor OWI conviction and is independent of Strong’s failure to
stop at the stop sign. Thus, Strong’s double jeopardy argument fails because the
actual evidence is not the same.
Conclusion
[19] The trial court did not abuse its discretion in granting Strong’s motion(s) to file
a belated notice of appeal and Strong properly proceeded under Post-
Conviction Rule 2. However, Strong’s OWI conviction and traffic infraction
do not constitute the same offense for Indiana double jeopardy purposes, and
Strong is therefore not entitled to the relief he seeks. His OWI conviction and
sentence and his traffic infraction and fine are affirmed.
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[20] Affirmed.
Brown, J., concurs.
Bailey, J., dissents with opinion.
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IN THE
COURT OF APPEALS OF INDIANA
Terrence Strong, April 9, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1406-CR-412
v.
Appeal from the Marion Superior
State of Indiana, Court
The Honorable Kimberly J. Brown,
Appellee-Plaintiff,
Judge
Cause. No. 49F07-1108-CM-60947
Bailey, Judge, dissenting.
[21] I agree with the State that the Indiana Post-Conviction rules do not entitle
Strong to challenge a nominal fine on belated appeal. See Reed v. State, 856
N.E.2d 1189, 1193 (Ind. 2006) (observing that post-conviction proceedings do
not afford a petitioner a “super-appeal” and that the post-conviction rules
contemplate a narrow remedy for subsequent collateral challenges to
convictions). In my view, dismissal is appropriate. I therefore respectfully
dissent.
[22] Indiana Post-Conviction Rule 1(1)(a) specifies to whom the remedy of post-
conviction relief is available, that is: “Any person who has been convicted of,
Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015 Page 13 of 15
or sentenced for, a crime by a court of this state [who makes certain specified
claims].” (emphasis added.) Post-Conviction Rule 2, under which Strong
sought relief, defines an eligible defendant as one who, but for his or her failure
to do so timely, would have the right to challenge on direct appeal a conviction or
sentence after a trial or plea of guilty. (emphasis added.) Our post-conviction rules
afford relief in limited circumstances to those convicted of and punished for
crimes.
[23] “[T]raffic infractions are civil, rather than criminal, in nature and the State must
prove the commission of the infraction by only a preponderance of the
evidence.” Rosenbaum v. State, 930 N.E.2d 72, 74 (Ind. Ct. App. 2010), trans.
denied.5 Strong was not convicted of, or punished for, a crime, so as to bring
him within the purview of our post-conviction rules. P-C.R. 1. Dismissal is the
appropriate remedy. See Witt v. State, 867 N.E.2d 1279, 1282 (Ind. 2007)
(finding dismissal to be the appropriate remedy where a litigant failed to satisfy
the requirements of Post-Conviction Rule 2).
[24] As the majority has observed, the trial court was unaware of the issue upon
which the post-conviction petition would proceed. But when presented to this
5
I acknowledge that Appellate Rule 2(G) defines criminal appeals to include infractions. The provision
includes limiting language: “This definition is for ease of reference and does not change the substantive
rights of the parties.” Id. Moreover, a perceived conflict between rules would be resolved with the more
specific rule governing over the more general. See DeLage Landen Fin. Serv., Inc. v. Community Mental Health
Center, Inc., 965 N.E.2d 693, 698 (Ind. Ct. App. 2012) (observing that “when two rules cover the same subject
matter and one does so generally where the other does so specifically, the more specific rule prevails.”)
Strong’s appeal, which might otherwise have been brought as a direct appeal of a civil infraction, is – due to
its procedural posture – one which specifically invokes the post-conviction rules.
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Court, it is clear that the only issue upon which the petitioner can be afforded
relief involves a civil infraction. Broadening the post-conviction rules by
judicial fiat will foster belated collateral challenges to any infraction, undermine
the principle of finality, and increase strain upon limited judicial resources.
[25] Accordingly, I dissent.
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