                                                                                   FILED
                                                                             Dec 07 2016, 9:29 am

                                                                                   CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      John L. Tompkins                                          Gregory F. Zoeller
      Brown Tompkins Lory & Mastrian                            Attorney General of Indiana
      Indianapolis, Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Albert Burton,                                            December 7, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A04-1602-CR-242
              v.                                                Interlocutory Appeal from the
                                                                Marion Superior Court
      State of Indiana,                                         The Honorable William J. Nelson,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                49G18-1411-F6-51820



      Crone, Judge.


                                              Case Summary
[1]   Albert Burton pled guilty to operating a motor vehicle while driving privileges

      are suspended as a level 6 felony under Indiana Code Section 9-30-10-16. The

      version of the statute in effect when Burton committed the crime provided that

      Court of Appeals of Indiana | Opinion 49A04-1602-CR-242 | December 7, 2016                      Page 1 of 5
      a person convicted of a felony under the statute “forfeits the privilege of

      operating a motor vehicle for life.” Ind. Code § 9-30-10-16(c). Because this

      provision was repealed before he was sentenced, Burton argued that it did not

      apply to him. The trial court disagreed but stayed entry of judgment to allow

      Burton to perfect an interlocutory appeal on the issue. We affirm the trial court

      and remand with instructions to enter judgment accordingly.


                                  Facts and Procedural History
[2]   On November 15, 2014, a police officer stopped Burton’s vehicle for a burned-

      out headlight. The officer determined that Burton’s driving privileges were

      suspended as a habitual traffic violator. The State charged Burton with

      violating Indiana Code Section 9-30-10-16. When Burton committed the

      offense, the statute read in relevant part as follows:

              (a) A person who operates a motor vehicle:
              (1) while the person’s driving privileges are validly suspended …
              and the person knows that the person’s driving privileges are
              suspended …
              commits a Level 6 felony.
              ….
              (c) In addition to any criminal penalty, a person who is convicted
              of a felony under subsection (a) forfeits the privilege of operating
              a motor vehicle for life. However, if judgment for conviction of a
              Class A misdemeanor is entered for an offense under subsection
              (a), the court may order a period of suspension of the convicted
              person’s driving privileges that is in addition to any suspension of
              driving privileges already imposed upon the person.




      Court of Appeals of Indiana | Opinion 49A04-1602-CR-242 | December 7, 2016    Page 2 of 5
      Ind. Code § 9-30-10-16 (2014). Effective July 1, 2015, subsection (c) of the

      statute was repealed.


[3]   Sometime thereafter, Burton signed a plea agreement in which he agreed to

      plead guilty as charged to a level 6 felony. The plea agreement contains the

      following language: “Total sentence of 545 days. Credit time. Remainder

      suspended on supervised probation. Defendant’s license suspension open to

      argument. No AMS [alternative minimum sentencing, i.e., sentencing for a

      class A misdemeanor instead of a level 6 felony].” Appellant’s App. at 23.


[4]   On December 14, 2015, the trial court held a guilty plea and sentencing

      hearing. Burton argued that his driving privileges could not be forfeited for life

      under Indiana Code Section 9-30-10-16(c) because that subsection of the statute

      had been repealed, and he further argued that the trial court could suspend his

      driving privileges for a maximum of two and one-half years pursuant to a

      statute that was enacted after he committed the offense. 1 The trial court

      disagreed. See Tr. at 4 (“[T]he suspension is open to argument but if it’s a

      felony it’s a lifetime suspension [sic].”). 2 The trial court accepted Burton’s

      guilty plea and stated that it would enter judgment of conviction as a level 6

      felony, impose a sentence of 545 days pursuant to the plea agreement, and


      1
        See Ind. Code § 9-30-16-1(c) (“Except as specifically provided in this chapter, for any criminal conviction in
      which the operation of a motor vehicle is an element of the offense, or any criminal conviction for an offense
      under IC 9-30-5, a court may suspend the person’s driving privileges for a period up to the maximum
      allowable period of incarceration under the penalty for the offense.”) (eff. July 1, 2015, to June 30, 2016);
      Ind. Code § 35-50-2-7(b) (setting maximum sentence for level 6 felony at two and one-half years).
      2
       “A suspension terminates driving privileges for only a definite period of years while a forfeiture terminates
      driving privileges for life.” State v. Vankirk, 955 N.E.2d 765, 768 (Ind. Ct. App. 2011), trans. denied (2012).

      Court of Appeals of Indiana | Opinion 49A04-1602-CR-242 | December 7, 2016                           Page 3 of 5
      order “a lifetime driving license suspension [sic.]” Id. at 24. At Burton’s

      request, the trial court stayed entry of judgment so that Burton could perfect an

      interlocutory appeal on the lifetime suspension issue, which he did.


                                        Discussion and Decision
[5]   The gist of Burton’s argument is that the lifetime forfeiture provision of Indiana

      Code Section 9-30-10-16(c) does not apply to him because it was repealed after

      he committed the offense and before he was sentenced. 3 As a general rule, the

      law in effect when a crime was committed is controlling. Collins v. State, 911

      N.E.2d 700, 708 (Ind. Ct. App. 2009), trans. denied. There are exceptions to this

      rule, 4 but Burton does not assert, let alone offer any cogent argument, that any

      of those exceptions apply here. Therefore, we affirm the trial court’s




      3
        Burton frames the issue as whether the lifetime forfeiture provision involves an administrative forfeiture or a
      judicial suspension of his driving privileges. He argues for the former and asserts that the Indiana Bureau
      Motor of Vehicles lost its authority to impose a lifetime forfeiture when that portion of the statute was
      repealed. Burton cites no authority for this assertion.
      4
        For example, “[t]he doctrine of amelioration allows a defendant to be sentenced under the more lenient
      provisions of a statute which is in effect at the time of sentencing rather than be sentenced under a more
      harsh statute in effect at the time the offense was committed.” Winbush v. State, 776 N.E.2d 1219, 1224-25
      (Ind. Ct. App. 2002), trans. denied (2003). It is arguable whether the doctrine would apply to the lifetime
      forfeiture provision of Indiana Code Section 9-30-10-16, which is a penalty imposed by operation of law and
      is distinguished from a “criminal penalty” (such as a sentence) by the language of the statute itself. Cf.
      Renfroe v. State, 743 N.E.2d 299, 301 (Ind. Ct. App. 2001) (stating that amelioration doctrine “[did] not
      strictly apply” to case involving post-sentence education credit), opinion on reh’g. Burton makes no mention
      of the amelioration doctrine, and we decline to decide the issue sua sponte absent briefing from both parties.
      At the guilty plea hearing, Burton admitted that he had additional habitual traffic violator cases pending in
      Johnson and Hamilton Counties, so he may have an opportunity to raise the issue in future proceedings.

      Court of Appeals of Indiana | Opinion 49A04-1602-CR-242 | December 7, 2016                           Page 4 of 5
      determination that the statute’s lifetime forfeiture provision applies to Burton

      and remand with instructions to enter judgment accordingly. 5


[6]   Affirmed and remanded.


      Kirsch, J., and May, J., concur.




      5
        Burton does not assert that any misconception about the applicability of the lifetime forfeiture provision
      rendered his guilty plea illusory.

      Court of Appeals of Indiana | Opinion 49A04-1602-CR-242 | December 7, 2016                           Page 5 of 5
