MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         Jan 29 2016, 9:53 am
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
Frederick Vaiana                                         Gregory F. Zoeller
Voyles Zahn & Paul                                       Attorney General of Indiana
Indianapolis, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

William Church,                                          January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A02-1508-CR-1176
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Wayne A.
Appellee-Plaintiff.                                      Sturtevant, Judge
                                                         Trial Court Cause No.
                                                         29D05-0805-FD-2747



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1176 | January 29, 2016        Page 1 of 6
[1]   In 2010, Appellant-Defendant William Church pled guilty to Class D felony

      operating a vehicle as a habitual traffic violator. In accordance with the plea

      agreement, Church’s driver’s privileges were suspended for life. In 2015,

      Church filed a motion to correct erroneous sentence. Church now appeals the

      trial court’s denial of that motion. We affirm in part, reverse in part, and

      remand with instructions.



                            Facts and Procedural History
[2]   On May 5, 2008, the State charged Church with Class D felony operating a

      vehicle as a habitual traffic violator. Church entered into a plea agreement with

      the State and pled guilty. The plea agreement read as follows:

              Should the defendant enter a plea of guilty to the charge(s) below
              and if the court accepts this plea agreement, then the Court shall
              sentence the Defendant as follows:
              Count 1: Operating a Vehicle as a Habitual Traffic Offender,
              Class D Felony
              1095 days in the Department of Correction, with 180 days
              executed and 915 days suspended. Executed time to be served
              through the Hamilton County Work Release program.
              Defendant given 28 days credit for 14 actual days served.
              $164.50 court costs. $100.00 administrative probation fee. The
              Court recommends to the BMV that the Defendant’s license be
              suspended for life. Defendant shall be placed on probation for a
              period of 2 years, with all standard terms and conditions, and
              shall also include: 1) payment of court costs, fines and fees; and
              2) determine how the defendant will be transporting himself and
              provide that information to his probation officer



      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1176 | January 29, 2016   Page 2 of 6
              and then the State shall move to dismiss ALL REMAINING
              CHARGES UNDER THIS CAUSE NUMBER.

      Appellant’s App. p. 12.


[3]   On April 27, 2010, the trial court accepted the plea agreement and sentenced

      Church in accordance with the terms therein. On April 28, 2010, the trial court

      issued its abstract of judgment which stated that Church’s driving privileges

      were suspended for 999 years. On July 15, 2015, Church filed a motion to

      correct erroneous sentence, which was denied without a hearing on July 22,

      2015. Church appeals the denial of his motion.



                                 Discussion and Decision
[4]           A trial court may correct an erroneous sentence when a sentence
              is facially defective. A sentence is facially defective if it violates
              express statutory authority at the time it is imposed. When we
              review the trial court’s decision on such a motion, we defer to the
              trial court’s factual finding and review its decision only for abuse
              of discretion. An abuse of discretion occurs when the trial
              court’s decision is clearly against the logic and effect of the facts
              and circumstances before it. However, we will review a trial
              court’s legal conclusions under a de novo standard of review.


      Parrett v. State, 800 N.E.2d 620, 622 (Ind. Ct. App. 2003) (citations and

      quotations omitted).


[5]   On appeal, Church argues that the trial court had no authority to suspend his

      driving privileges for 999 years because there was no such term in the plea

      agreement. The only term in the plea agreement regarding suspension of

      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1176 | January 29, 2016   Page 3 of 6
      Church’s license reads, “The Court recommends to the BMV that the

      Defendant’s license be suspended for life.” Appellant’s App. p. 12. This

      provision was recited verbatim in the trial court’s sentencing order. Church

      argues that the trial court was bound by the plea “only to recommend the

      suspension of Church’s driving privileges for life rather than specifically

      ordering the suspension….” Appellant’s Br. p. 5. The State contends that

      remand is appropriate to determine whether the suspension was issued pursuant

      to the plea agreement or whether it is an additional suspension.


[6]   Church was convicted under Indiana Code section 9-30-10-16, which provides

      as follows:

              (a) A person who operates a motor vehicle:
                       (1) while the person’s driving privileges are validly
                       suspended under this chapter or IC 9-12-2 (repealed July 1,
                       1991) and the person knows that the person’s driving
                       privileges are suspended; or
                       (2) in violation of restrictions imposed under this chapter
                       or IC 9-12-2 (repealed July 1, 1991) and who knows of the
                       existence of the restrictions;
              commits a Class D 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 | Memorandum Decision 29A02-1508-CR-1176 | January 29, 2016   Page 4 of 6
      (Emphasis added). According to subsection (c), a Class D felony conviction

      under subsection (a) automatically causes the convicted individual to forfeit

      their driving privileges for life. According to the statutory language, neither the

      trial court nor the BMV has the authority to deviate from this mandatory

      forfeiture.


[7]   Nevertheless, Church argues that the language from the plea agreement and

      sentencing order, stating that the trial court “recommends” that the BMV

      suspend Church’s driver’s license for life, is only a recommendation and not an

      order. Although this argument is novel, it is not supported by law. Regardless

      of the language used in the plea, Church forfeited his driving privileges for life

      upon pleading guilty to being a habitual traffic offender and the trial court was

      bound to order as such.1 The method by which the trial court communicates

      Church’s driving privilege forfeiture to the BMV, whether via an order,

      recommendation, notification, etc., is irrelevant. The result is the same.


[8]   We think it clear that the 999-year suspension in the abstract of judgment was

      meant to be a lifetime suspension in accordance with the Indiana Code section

      9-30-10-16 and the plea agreement. However, the State believes that remand is

      appropriate to clarify that the 999-year suspension is not a secondary




      1
        Church also argues that, under Section 9-30-10-16(c), it is not the trial court’s place to judicially order the
      lifetime suspension but the BMV’s duty to administratively order the suspension. Church goes on to argue
      that because the trial court and BMV both issued suspensions, he essentially received two lifetime
      suspensions. We find that attempting to distinguish these suspensions is an exercise in semantics. Church
      forfeited his license once, and only once, under Section 9-30-10-16. The BMV simply imposed the
      suspension mandated by statute and ordered by the trial court.

      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1176 | January 29, 2016                 Page 5 of 6
      suspension in addition to the lifetime suspension provided for in the sentencing

      order. Additionally, we note that, despite its functional effect, the trial court

      had no authority to order a term-of-years suspension. Accordingly, we remand

      with instructions that the trial court make its abstract of judgment consistent

      with the sentencing order’s recommendation of a lifetime suspension.


[9]   We affirm the judgment of the trial court in part, reverse in part, and remand

      with instructions.


      Baker, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 29A02-1508-CR-1176 | January 29, 2016   Page 6 of 6
