State of Indiana v. Martin Ferrell (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Feb 15 2018, 8:39 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
Court of Appeals
purpose of establishing the defense of res judicata, and Tax Court
collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

State of Indiana, et al., February 15, 2018

Appellants-Respondents, Court of Appeals Case No.
45A03-1707-MI-1649
v. Appeal from the Lake Circuit Court.
The Honorable Marissa J.
McDermott, Judge.
Martin Ferrell, Trial Court Cause No.
Appellee-Petitioner. 45C01-1705-MI-134

Sharpnack, Senior Judge

Statement of the Case
[1] The State of Indiana and the Indiana Bureau of Motor Vehicles appeal the trial

court’s denial of their motion to correct error after the court granted specialized

driving privileges to Martin Ferrell. We reverse and remand.

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 Issue
[2] The State and the BMV raise two issues, which we consolidate and restate as:

whether the trial court erred in denying the motion to correct error because

Ferrell is statutorily ineligible for specialized driving privileges.

Facts and Procedural History
[3] On March 19, 2017, Ferrell was ordered to submit to a chemical test under

circumstances that are not explained in the record. Ferrell refused to submit to

the test. On March 20, 2017, the BMV administratively suspended his driving

privileges for two years due to his failure to comply with the order.

[4] On May 1, 2017, Ferrell filed a verified petition for specialized driving

privileges. The trial court held a hearing on the petition. A deputy prosecutor

appeared for the State and had no objection to the petition if Ferrell was

required to use an ignition interlock device for ninety days.

[5] After the hearing, the court granted Ferrell’s petition on May 9, 2017. The

court conditioned Ferrell’s privileges on his use of an ignition interlock device

for ninety days as requested by the State. In compliance with the court’s order,

the BMV noted in its records that the suspension ended on May 9, 2017.

[6] Next, the State and the BMV, through a deputy attorney general, filed a motion

to correct error. The court denied the motion without a hearing, concluding the

deputy prosecutor “waived the BMV’s right to now object.” Appellants’ App.

Vol. II, p. 13. This appeal followed.

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 Discussion and Decision
[7] The State and the BMV argue the trial court should have granted their motion

to correct error. They characterize their claim as addressing “the sufficiency of

the evidence supporting the trial court’s order.” Appellants’ Br. p. 13. We view

the appeal as raising a question of law rather than of fact, specifically whether

the trial court had the statutory authority to grant specialized driving privileges

to Ferrell.

[8] Ferrell did not file an appellee’s brief. Under these circumstances, an appellant

need only demonstrate a prima facie showing of error to merit reversal. State v.

Atkins, 824 N.E.2d 676, 677 (Ind. 2005). Prima facie error is “‘error at first

sight, on first appearance, or on the face of it.’” State v. Miracle, 75 N.E.3d

1106, 1108 (Ind. Ct. App. 2017) (quoting Wharton v. State, 42 N.E.3d 539, 541

(Ind. Ct. App. 2015)). Further, the interpretation of a statute is a question of

law, and we apply a de novo standard of review with no deference to the trial

court’s legal conclusions. Hurley v. State, 75 N.E.3d 1074, 1077 (Ind. 2017).

[9] The BMV has the authority to suspend persons’ driving privileges for various

types of misconduct. For example, if a person refuses an order to submit to a

chemical test, the BMV shall suspend the person’s driving privileges for one

year, or for two years if the person has a conviction for operating while

intoxicated in the prior two years. Ind. Code § 9-30-6-9 (2015).

[10] When the BMV administratively suspends a person’s driving privileges, the

person may petition a court for specialized driving privileges, thus staying the

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 administrative suspension. Ind. Code § 9-30-16-4 (2016). The court’s power to

grant such privileges is not unlimited. A person’s whose driving privileges have

been suspended for “refusal to submit to a chemical test offered under IC 9-30-6

or IC 9-30-7” is “ineligible for specialized driving privileges.” Ind. Code § 9-30-

16-1 (2016).

[11] Pursuant to the plain language of Indiana Code section 9-30-16-1, Ferrell was

ineligible for specialized driving privileges because his underlying misconduct

was a refusal to take a chemical test. As a result, the trial court lacked statutory

authority to grant such privileges to Ferrell. See Ind. Bureau of Motor Vehicles v.

Newlin, 74 N.E.3d 569, 572 (Ind. Ct. App. 2017) (trial court erred in denying

BMV’s motion to correct error as to grant of specialized driving privileges;

Newlin was ineligible for the privileges because his license was suspended for

failure to submit to a chemical test).

[12] Further, we agree with the State and the BMV that the doctrine of waiver is

inapplicable under the circumstances of this case. It is true that the State can

waive its rights as a litigant through failure to object. See, e.g., State v. Keith, 507

N.E.2d 245, 245 (Ind. Ct. App. 1987) (State did not object, and thus waived

any claim of error, when trial court sentenced defendant on misdemeanor

charges that should have been dismissed, thus precluding later felony charges

arising out of the same incident). However, waiver does not prevent the State,

in a motion to correct error, from showing that the trial court’s decision was

contrary to law. Here, under Indiana Code section 9-30-16-1, the trial court

had no authority to grant the specialized privileges Ferrell sought. The deputy

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 prosecutor’s failure to object did not prevent the trial court from correcting the

error in response to a motion to correct erroneous sentence.

[13] The State and the BMV have demonstrated prima facie error in the denial of

their motion to correct error. Ferrell’s specialized driving privileges must be

revoked, and his two-year suspension must be reinstated.

Conclusion
[14] For the reasons stated above, we reverse the judgment of the trial court and

remand for further proceedings not inconsistent with this opinion.

[15] Reversed and remanded.

Crone, J., and Altice, J., concur.

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