 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:
STEVEN A. GUSTAFSON                                 GREGORY F. ZOELLER
New Albany, Indiana                                 Attorney General of Indiana

                                                    NICOLE M. SCHUSTER
                                                    Deputy Attorney General

                                                                                  FILED
                                                    Indianapolis, Indiana

                                                                             Jun 08 2012, 9:28 am


                              IN THE                                                 CLERK
                                                                                   of the supreme court,


                    COURT OF APPEALS OF INDIANA
                                                                                   court of appeals and
                                                                                          tax court




BLAKE CLUNIE,                                       )
                                                    )
       Appellant,                                   )
                                                    )
           vs.                                      )      No. 31A01-1109-PC-458
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee.                                    )



                    APPEAL FROM THE HARRISON SUPERIOR COURT
                            The Honorable Roger D. Davis, Judge
                    Cause Nos. 31D01-0604-FD-314 and 31D01-1104-PC-6



                                           June 8, 2012
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       In 2006, Blake Clunie (“Clunie”) pleaded guilty to Class A misdemeanor

operating while intoxicated and Class A misdemeanor resisting law enforcement. In

April 2011, Clunie filed a petition for post-conviction relief, which was subsequently

denied. Clunie then filed a motion to correct error. However, Clunie erroneously filed

the motion under the original criminal cause number instead of the post-conviction cause

number. At a hearing on the motion to correct error, Clunie asked the trial court to

amend the cause number shown on the motion to correct error to reflect the cause number

associated with the post-conviction proceedings rather than the original criminal case.

The trial court declined Clunie’s request and denied the motion to correct error. On

appeal, Clunie argues that the trial court erred in concluding that he was not entitled to

post-conviction relief. The State cross-appeals and argues that this appeal should be

dismissed as untimely. We affirm.

                             Facts and Procedural History

       On July 31, 2006, Clunie pleaded guilty under cause number 31D01-0604-FD-314

(“Criminal Cause #314”) to Class A misdemeanor driving while intoxicated and Class A

misdemeanor resisting law enforcement. The trial court imposed concurrent one-year

sentences for each conviction and suspended the sentences to probation. Clunie did not

file a direct appeal.

       On April 4, 2011, Clunie filed a petition for post-conviction relief, which was filed

under cause number 31D01-1104-PC-6 (“P-CR Cause #6”).              In the petition, Clunie

argued that because he was operating an all-terrain vehicle at the time of the offense in


                                             2
Criminal Cause #314, his conviction should be amended from a Class A misdemeanor

under Indiana Code section 9-30-5-2, which applies generally to vehicles, to a Class B

misdemeanor under Indiana Code section 14-16-1-23, which applies specifically to off-

road vehicles. The State initially contested Clunie’s petition and filed a motion for

summary disposition. However, at a hearing on June 9, 2011, the State withdrew its

motion for summary disposition and indicated that it had no objection to Clunie’s

requested relief. After the hearing, Clunie filed a brief in support of his petition for post-

conviction relief, and the State filed a reply indicating that it agreed that Clunie was

entitled to his requested relief.

       On June 28, 2011, the post-conviction court entered an order denying Clunie’s

petition for post-conviction relief. The order was accompanied by the following relevant

findings and conclusions:

              The Court finds, based upon the Petitioner’s testimony, that he was
       operating a four-wheeler (all-terrain vehicle) on a county road at the time of
       his arrest. The more specific statute the Petitioner claims should apply to
       this case is I.C. 14-16-1-23. This is the sole basis of the Petition for Post-
       Conviction Relief concerning the Operating While Intoxicated conviction.
              The scope of the application of I.C. 9-30-5-2 was addressed by the
       Indiana Supreme Court in State v. Manuwal, 904 N.E.2d, 657 (Ind. 2009).
       In that case the Indiana Supreme Court held that “Indiana Code §§ 9-30-5-
       1(b) and 9-30-5-2 apply when a motorist is driving on public or private
       property, including property owned by the motorist. Id. at [] 657[.] In
       Manuwal the defendant was operating his all-terrain vehicle on his own
       private property. The defendant was charged under I.C. 9-30-5-1 and 9-30-
       5-2. The Indiana Supreme Court found that “neither provision expressly
       limits its application to public highways nor designates application to
       private property in any way.” Id. at [] 658. Although Manuwal dealt with
       the issue of the application of I.C. 9-30-5-2 to private property, the Indiana
       Supreme Court discussed the scope of its application.


                                              3
              In this case the issue is whether the Prosecutor was required to
      charge under Title 14 or had the discretion to charge under Title 9. The
      Indiana Supreme Court has considered this issue in other kinds of cases. In
      Skinner v. State, 732 N.E.2d 235 (Ind. [Ct.] App. 2000), the Court of
      Appeals considered a situation where more than one statute defined the
      actions of a defendant as a crime. The Court of Appeals noted that the
      State may prosecute under either statute as long as it does not discriminate
      against any class of defendants and stated that “whether to prosecute and
      what charge to file or bring are decisions that generally rest in the
      Prosecutor’s discretion.” Id. at [] 238. The Court of Appeals further stated
      that it has long been settled that it is the province of the Legislature to
      define criminal offenses and set penalties. The Court of Appeals also noted
      that the State is not required to prosecute under “the more specific of two
      statutes or under the statute carrying the lesser penalty.” Id. at [] 238. In
      the Skinner case, the Indiana Supreme Court granted transfer and
      summarily affirmed the Court of Appeal’s opinion and disapproved an
      opinion with a different result. The Indiana Supreme Court, in Skinner v.
      State, 736 N.E.2d 1222 (Ind. 2000), referred to the Court of Appeals
      holding that “when two criminal statutes overlap such that either may cover
      a given set of facts, the Prosecutor has the discretion to charge under either
      statute”, and summarily affirmed the Court of [Appeals’] opinion to that
      effect. . . .
              This Court finds that I.C. 9-30-5-2 does not limit its application to
      certain types of vehicles. I.C. 9-13-2-196 defines a “vehicle” for the
      purposes of I.C. 9-30-5 as a “device for transportation by land or air.”
      Vehicle has different meanings for different statutes. This Court finds the
      definition for purposes of I.C. 9-30-5 is broad enough to include an A.T.V.
      or four-wheeler.
              This Court finds it was within the prosecutor’s discretion to charge
      the offense in this case under Title 9 instead of Title 14. See Skinner v.
      State.
              Considering the broad scope of I.C. 9-30-5-2 and the Indiana
      Supreme Court’s ruling in Skinner, this Court finds no ambiguity or reason
      to apply “the rule of lenity”.
              IT IS THEREFORE ORDERED that the Petition for Post-
      Conviction Relief be and the same is hereby denied.

Appellant’s App. pp. 21-23.

      On July 6, 2011, Clunie filed a motion to correct error. It is apparent from the

substance of the motion that Clunie was attempting to challenge the trial court’s order

                                            4
denying his petition for post-conviction relief. However, the motion’s caption included

only the cause number associated with Criminal Cause #314. As a result, the motion to

correct error was only filed under Criminal Cause #314 and not P-CR Cause #6.

       A hearing was held on the motion to correct error on September 19, 2011. At the

hearing, the court noted that the motion to correct error had been filed in the criminal

case only, and Clunie’s counsel asked the trial court to “modify the cause number”

reflected on the motion, presumably to P-CR Cause #6. Tr. p. 32. The court declined to

do so and, at the conclusion of the hearing, denied Clunie’s motion. On September 23,

2011, Clunie filed a notice of appeal under both Criminal Cause #314 and P-CR Cause

#6. This appeal ensued.

                                       I. Timeliness

       We address the State’s argument that Clunie’s appeal is untimely as a threshold

issue. Indiana Appellate Rule 9(A)(1) provides that “[a] party initiates an appeal by

filing a Notice of Appeal with the trial court clerk within thirty (30) days after the entry

of a Final Judgment.” However, if any party files a timely motion to correct error, a

notice of appeal must be filed within thirty days after the court’s ruling on the motion, or

thirty days after the motion is deemed denied under Trial Rule 53.3, whichever occurs

first. Ind. App. R. 9(A)(1). The timely filing of a notice of appeal is a jurisdictional

prerequisite, and failure to conform to the applicable time limits results in forfeiture of an

appeal. Bergstrom v. State, 933 N.E.2d 555, 556-57 (Ind. Ct. App. 2010), trans. denied;

App. R. 9(A)(5).


                                              5
         On appeal, Clunie concedes that if we conclude that his failure to include the

correct cause number in the caption of his motion to correct error means that the motion

did not extend his deadline for filing his notice of appeal in P-CR Cause #6, then this

appeal is untimely. However, Clunie argues that his error should not lead to such a harsh

result in light of the fact that the mistake did not mislead the court or the State. We

agree.

         It should first be noted that the motion to correct error was not the first filing to be

marked with the incorrect cause number. Specifically, the caption on Clunie’s petition

for post-conviction relief lists the criminal cause number, and the post-conviction cause

number is handwritten on the petition. Additionally, the caption of Clunie’s brief in

support of his petition for post-conviction relief includes only the criminal cause number;

nevertheless, the brief was filed in the post-conviction cause.

         Additionally, the post-conviction chronological case summary (“P-CR CCS”) and

the criminal chronological case summary (“Criminal CCS”) each show the other as a

“Related Case[]” and note that they are “(Consolidated).”1 Appellant’s App. p. 2, P-CR

CCS p. 1.          And in order to fully understand the history of the post-conviction

proceeding, it is necessary to reference both the P-CR CCS and the Criminal CCS. The

filing of an appearance, the petition for post-conviction relief, and a motion for a hearing

are all shown on the P-CR CCS. An April 7, 2011 entry on the Criminal CCS shows that

a “hearing on defendant’s motion for PCR” was set for June 9, 2011. Appellant’s App.

1
 Because Clunie has not included a complete copy of the P-CR CCS in his Appellant’s Appendix, we reference the
copy of the P-CR CCS attached to the Notice of Completion of Clerk’s Record.

                                                      6
p. 5. The filing of the State’s appearance, answer, and motion for summary disposition

are all shown on the P-CR CCS, along with an April 12, 2011 entry indicating that the

“[c]ourt will consider the State’s Mot. for Summary Disposition at hrg. on 06-09-11[.]”

P-CR CCS p. 2. The June 9, 2011 hearing on the petition for post-conviction relief is

reflected only on the Criminal CCS, along with notations indicating that the State

withdrew its motion for summary disposition and that the trial court set deadlines for the

filing of post-hearing briefs. And despite having only the criminal cause number in its

caption, Clunie’s June 15, 2011 filing of his brief in support of his motion for post-

conviction relief is reflected on the P-CR CCS. The June 28, 2011 order denying

Clunie’s petition for post-conviction relief is listed on the P-CR CCS.

       Finally, although Clunie’s July 6, 2011 motion to correct error only lists the

criminal cause number in its caption, it is clear from the substance of the motion that

Clunie sought to challenge the denial of post-conviction relief. Indeed, the trial court’s

order denying Clunie’s motion to correct error indicates that Clunie was requesting the

court “to correct errors in denying a petition for post conviction relief.” Appellant’s App.

p. 26. We also find it noteworthy that the State raised no argument concerning whether

the motion to correct error had been properly filed as part of the post-conviction

proceedings, nor did it object to Clunie’s request to modify the caption to reflect the

cause number associated with P-CR Cause #6. In fact, the State indicated that it believed

Clunie “timely file[d] his motion to correct errors.” Tr. p. 28.




                                              7
         For all of these reasons, it is apparent that throughout these proceedings,

regardless of which cause number was used, all parties and the court knew that they were

proceeding on a petition for post-conviction relief. It therefore seems unfair for the court

to insist on an accurate cause number at such a late stage in the proceedings, particularly

in light of the fact that its ruling would result in the forfeiture of Clunie’s right to appeal

the denial of his petition for post-conviction relief. Given our strong preference for

deciding cases on the merits where possible, and because it was clear to all that the

motion to correct error was in reference to the order denying Clunie’s petition for post-

conviction relief, we hold that Clunie’s time for filing his notice of appeal ran from the

date his motion to correct error was denied. Accordingly, we conclude that this appeal is

timely and proceed to address the case on the merits.2

                                  II. Petition for Post-Conviction Relief

         In his petition for post-conviction relief, Clunie argued that he was entitled to be

charged with and plead guilty to a Class B misdemeanor under Indiana Code section 14-

16-1-23 rather than a Class A misdemeanor under Indiana Code section 9-30-5-2. Post-

conviction proceedings are not “super appeals” through which convicted persons can

raise issues they failed to raise at trial or on direct appeal. McCary v. State, 761 N.E.2d

389, 391 (Ind. 2002). Rather, post-conviction proceedings afford petitioners a limited

opportunity to raise issues that were unavailable or unknown at trial and on direct appeal.


2
 Although we address Clunie’s claim on the merits, we note that because we ultimately affirm the trial court’s
decision, our decision has the same practical effect of a dismissal in that Clunie is still denied the relief sought in his
petition for post-conviction relief.

                                                            8
Davidson v. State, 763 N.E.2d 441, 443 (Ind. 2002). A post-conviction petitioner bears

the burden of establishing grounds for relief by a preponderance of the evidence. Henley

v. State, 881 N.E.2d 639, 643 (Ind. 2008). On appeal from the denial of post-conviction

relief, the petitioner stands in the position of one appealing from a negative judgment. Id.

To prevail on appeal from the denial of post-conviction relief, the petitioner must show

that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite

that reached by the post-conviction court. Id. at 643-44.

       Where, as here, the post-conviction court makes findings of fact and conclusions

of law in accordance with Indiana Post-Conviction Rule 1(6), we cannot affirm the

judgment on any legal basis, but rather, must determine if the court’s findings are

sufficient to support its judgment. Graham v. State, 941 N.E.2d 1091, 1096 (Ind. Ct.

App. 2011), aff’d of reh’g, 947 N.E.2d 962. Although we do not defer to the post-

conviction court’s legal conclusions, we review the post-conviction court’s factual

findings under a clearly erroneous standard. Id. Accordingly, we will not reweigh the

evidence or judge the credibility of witnesses, and we will consider only the probative

evidence and reasonable inferences flowing therefrom that support the post-conviction

court’s decision. Id.

       On appeal, Clunie argues that he was entitled to have his Class A misdemeanor

conviction under Indiana Code section 9-30-5-2 modified to a Class B misdemeanor

conviction under Indiana Code section 14-16-1-23 because the latter statute applies

specifically to off-road vehicles such as the all-terrain vehicle he was driving at the time


                                             9
of his offense, whereas the former statute applies generally to “vehicle[s].” Clunie argues

that legislative intent behind the statutes reflects the General Assembly’s intent that one

who operates an off-road vehicle while intoxicated should be punished less harshly and

should not suffer the same collateral consequences as one who operates a car while

intoxicated. We disagree. The General Assembly has broadly defined “vehicle” for the

purposes of Indiana Code section 9-30-5-2 as “a device for transportation by land or air.”

Ind. Code § 9-13-2-196(f). This definition clearly encompasses the operation of all-

terrain vehicles. See State v. Manuwal, 904 N.E.2d 657, 657 (Ind. 2009); State v. Laker,

939 N.E.2d 1111, 1114 (Ind. Ct. App. 2010), trans. denied. If the General Assembly

wished to exclude all-terrain vehicles from the operation of Indiana Code section 9-30-5-

2, it could easily have done so by using less expansive language.

       Clunie also argues that even if his conduct falls within the ambit of Indiana Code

section 9-30-5-2, under the rule of lenity, he was entitled to be charged with and plead

guilty to the more specific, lesser offense under Indiana Code section 14-16-1-23. Again,

Clunie’s claim is unavailing. Our supreme court has held that “when two criminal

statutes overlap such that either may cover a given set of facts, the prosecutor has the

discretion to charge under either statute.” Skinner v. State, 736 N.E.2d 1222, 1222 (Ind.

2000). Here, in the exercise of his or her discretion, the prosecutor chose to charge

Clunie under Indiana Code section 9-30-5-2. His conviction under that statute was

therefore not error.




                                            10
       Finally, Clunie argues that he was entitled to modification of his conviction

because the Harrison County Prosecutor’s Office filed a response to his petition for post-

conviction relief indicating that the State agreed that Clunie’s conviction under section 9-

30-5-2 should be set aside and that judgment of conviction should be entered under

section 14-16-1-23.     According to Clunie, the prosecutor’s agreement that Clunie’s

conviction should be modified constituted an exercise of his discretion under Skinner,

and the trial court had no authority to reject the agreement. But Clunie has cited no

authority supporting the proposition that a prosecutor’s discretion to charge a defendant

under one of two statutes gives the prosecutor the authority to unilaterally modify a

conviction years after it is entered. Nor has Clunie directed our attention to any authority

indicating that a trial court has the authority to modify a properly entered conviction

years later. See State v. Brunner, 947 N.E.2d 411, 417 (Ind. 2011) (“Although it may be

equitable and desirable for the legislature to give a trial court discretion in modifying a

conviction years later for good behavior, we recognize at this time the legislature has not

given any such authority.”). Moreover, this court recently held that a post-conviction

court has the authority to either accept or reject a proffered agreement between the State

and the defendant. See Jackson v. State, 958 N.E.2d 1161, 1165-66 (Ind. Ct. App. 2012),

trans. pending. Although Jackson has yet to be certified, we agree with the reasoning set

forth therein. For all of these reasons, we conclude that Clunie has not established that he

is entitled to post-conviction relief.

       Affirmed.


                                            11
ROBB, C.J., and BAILEY, J., concur.




                                      12
