                                                                   Nov 30 2015, 7:00 am




ATTORNEYS FOR APPELLANTS                                   ATTORNEY FOR APPELLEES
Gregory F. Zoeller                                         Marce Gonzalez, Jr.
Attorney General of Indiana                                Dyer, Indiana
Frances H. Barrow
Aaron T. Craft
Deputy Attorneys General
Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Kent W. Abernathy,                                        November 30, 2015
Commissioner of the Indiana                               Court of Appeals Case No.
Bureau of Motor Vehicles and                              45A03-1503-MI-73
Bernard Carter, Prosecuting                               Appeal from the Lake Superior
Attorney for Lake County,                                 Court
                                                          The Honorable Julie N. Cantrell,
Appellants-Respondents,                                   Judge
        v.                                                Cause Nos. 45D09-1407-MI-62,
                                                          45D09-1409-MI-90, 45D09-1407-
                                                          MI-61, 45D09-1406-MI-55, &
Eric C. Gulden, Jeremy                                    45D09-1406-MI-57
Crawford, David J. Klahn, John
P. Martin, and James M.
Panozzo,
Appellees-Petitioners.




Riley, Judge.

Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015                Page 1 of 19
                                    STATEMENT OF THE CASE

[1]   Appellants-Respondents, Kent W. Abernathy, Commissioner of the Indiana

      Bureau of Motor Vehicles, and Bernard Carter, Prosecuting Attorney for Lake

      County (collectively, BMV), appeal from the consolidated trial court’s denials

      of the BMV’s motions to correct error, and in one case, the BMV’s motion for

      relief from judgment, in which the trial court upheld its grant of the five

      Appellees-Petitioners’, Eric C. Gulden (Gulden), Jeremy Crawford (Crawford),

      David J. Klahn (Klahn), John P. Martin (Martin), and James M. Panozzo

      (Panozzo) (collectively, Appellees), petitions for judicial review of the BMV’s

      determinations that each of them qualified as an habitual traffic violator (HTV).


[2]   We reverse.


                                                     ISSUE

[3]   The BMV raises one issue on appeal, which we restate as: Whether Indiana

      Code section 9-30-10-4(e), which requires the BMV to use the dates of the

      offenses rather than the dates of the judgments in determining a person’s status

      as an HTV, violates the ex post facto clauses of the Indiana and United States

      Constitutions, as applied to Appellees who committed their third HTV-

      qualifying offense prior to the effective date of subsection 4(e) but whose third

      judgment was entered after that provision became effective.


                           FACTS AND PROCEDURAL HISTORY




      Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 2 of 19
[4]   On October 4, 2003, Gulden committed the offense of reckless driving, for

      which judgment was entered on November 17, 2003. He committed the offense

      of operating while intoxicated on January 31, 2004, and judgment was entered

      against him on March 28, 2005. Thereafter, on July 29, 2007, he committed

      the offense of operating while intoxicated endangering a person, with judgment

      entered on April 21, 2014. On May 1, 2014, the BMV notified Gulden that he

      had accumulated three qualifying judgments within a ten-year period and as a

      result, Gulden was deemed an HTV and his driver’s license was suspended for

      ten years. On July 16, 2014, Gulden filed a petition for judicial review of his

      HTV determination.


[5]   Crawford committed the offense of operating while intoxicated on October 27,

      2003, November 30, 2003, and January 5, 2008. Judgment on these offenses

      was entered on December 22, 2003, September 12, 2005, and September 3,

      2014, respectively. On September 9, 2014, five days after the last qualifying

      judgment, the BMV notified Crawford of his HTV status and his ten-year

      license suspension. On September 24, 2014, Crawford filed a petition for

      judicial review of his HTV determination.


[6]   On August 24, 2002, Klahn committed the offense of operating while

      intoxicated and judgment was entered on November 27, 2002. He committed

      the offense of operating while intoxicated endangering a person on December

      30, 2007, with judgment entered on July 3, 2008. Thereafter, on August 22,

      2011, Klahn committed the offense of prior operating while intoxicated within

      five years, and the trial court entered judgment on October 4, 2013. The BMV

      Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 3 of 19
      informed Klahn of his HTV status and ten-year license suspension by notice

      dated October 19, 2013. On July 16, 2014, Klahn filed a petition for judicial

      review of his HTV determination.


[7]   Martin committed the offense of driving while intoxicated on January 4, 2004,

      with judgement entered thereon on February 23, 2004. On February 19, 2008,

      he committed the offense of operating while intoxicated endangering a person,

      and the trial court entered judgment on April 14, 2014. On November 14,

      2008, Martin committed the offense of prior operating while intoxicated within

      five years, and judgment was also entered on April 14, 2014. On May 14, 2014,

      the BMV notified Martin of his HTV status and his resulting ten-year license

      suspension. On June 26, 2014, Martin filed a petition for judicial review of his

      HTV determination.


[8]   On February 7, 2004, Panozzo committed the offense of reckless driving, and

      judgment was entered on March 15, 2004. He committed the offense of

      operating while intoxicated on April 21, 2007, and judgment was entered

      against him on October 19, 2007. On December 23, 2011, he committed the

      offense of operating while intoxicated endangering a person, with judgment

      entered on April 28, 2014. On May 14, 2014, the BMV notified him of his

      HTV status and his ten-year license suspension. On June 2, 2014, Panozzo

      requested administrative review of the HTV determination, after which the

      BMV upheld its decision on June 25, 2014. The following day, Panozzo filed a

      petition for judicial review with the trial court.



      Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 4 of 19
[9]   The trial court granted Appellees’ separate petitions for judicial review based on

      its interpretation of Indiana Code section 9-30-10-4, which defines an HTV. 1

      The trial court noted—without any references to case law—that this statute

      previously required reliance on the conviction dates to determine whether the

      three qualifying offenses fell within the ten-year time period for the HTV

      determination. On July 1, 2012, a new subsection 4(e) of the statute took effect

      which provided that the date of the commission of the offense, rather than the

      judgment date, is determinative to calculate the ten-year time limitation.

      Although the time between each Appellee’s first and third qualifying conviction

      exceeded ten years, at least one of each Appellee’s judgments was entered after

      the amendment took effect. Thus, when the HTV status was triggered by the

      third judgment, the BMV used the dates of the offense rather than the judgment

      dates to determine each Appellee’s HTV status. The trial court concluded that

      this retroactive application of subsection 4(e) to each Appellee violated the ex

      post facto clauses of the United States and Indiana Constitutions. The BMV

      filed a motion to correct error in the cause of Gulden, Klahn, Martin, and

      Panozzo, and a motion for relief from judgment in Crawford’s cause. In each

      cause, the BMV argued that because the purpose of the HTV statute was public

      safety and health rather than punishment, the ex post facto clause was not

      applicable. The trial court denied the BMV’s motion in each cause.




      1
       Although the order granting Crawford’s petition for judicial review did not provide the trial court’s reasons,
      Crawford’s petition raised the same ex post facto argument as the other Appellees. As such, we assume that
      Crawford’s petition was granted on the same grounds.

      Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015                         Page 5 of 19
[10]   The BMV now appeals these five judgments, which we consolidated on appeal.

       Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                              I. Standard of Review


[11]   We review the denial of a request for a new trial presented by a Trial Rule 59

       motion to correct error or—with respect to Crawford—a Trial Rule 60(B)

       motion for relief from judgment for abuse of discretion. Speedway SuperAmerica,

       LLC. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. We will reverse

       only where the trial court’s judgment is clearly against the logic and effect of the

       facts and circumstances before it, or where the trial court errs on a matter of

       law. Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013).


[12]   However, when reviewing a challenge to the constitutionality of a statute, we

       apply a de novo standard of review. Gul v. City of Bloomington, 22 N.E.3d 853,

       857 (Ind. Ct. App. 2014), trans. denied. As such, every statute stands before us

       clothed with the presumption of constitutionality until clearly overcome by a

       contrary showing. In re Adoption of K.G.B., 18 N.E.3d 292, 299 (Ind. Ct. App.

       2014) (citing State Bd. of Tax Comm’rs v. Town of St. John, 702 N.E.2d 1034, 1037

       (Ind. 1998)). The party challenging the constitutionality of the statute bears the

       burden of proof and all doubts are resolved against that party. Id. If two

       reasonable interpretations of a statute are available, one of which is

       constitutional and the other not, we will choose that path which permits

       upholding the statute because we will not presume that the legislature violated

       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 6 of 19
the constitution unless the ambiguous language of the statute requires that

conclusion. Id. In addition, where, as here, the issue focuses on the

constitutionality of a statute as applied to Appellees, the reviewing court can

only “declare the challenged statute or regulation unconstitutional on the facts

of the particular case.” Id. (citing Hazelwood v. State, 3 N.E.3d 39, 40 (Ind. Ct.

App. 2015), reh’g denied).


                            II. Applicability of Ind. Code § 9-30-10-4


Section 4 of the Habitual Violator of Traffic Laws Chapter provides, in

pertinent part,

        (b) A person who has accumulated at least three (3) judgments within
        a ten (10) year period for any of the following violations, singularly or
        in combination, and not arising out of the same incident, is a habitual
        violator:
                 (1) Operation of a vehicle while intoxicated.
                 ***
                 (5) Reckless driving.
        ***
        (e) For purposes of this section, the offense date is used when
        determining the number of judgments accumulated within a ten (10)
        year period.
I.C. § 9-30-10-4. Even though the HTV statute has been amended several times

in recent years, only the 2012 amendment, which became effective on July 1,

2012 and which added subsection 4(e), is directly at issue here. See Pub. L. No.

125-2012, § 349, 2012 Ind. Acts 2169, 2342-44.




Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015      Page 7 of 19
[13]   Pursuant to the language of the statute, the HTV determination is triggered by

       the accumulation of a third judgment for a qualifying violation within ten years.

       See I.C. § 9-30-10-4(b). Appellees do not appear to dispute that under the plain

       terms of the statute, they each qualify as an HTV by application of subsection

       4(e). Gulden committed qualifying offenses on October 4, 2003, January 31,

       2004, and July 29, 2007. With each violation, a judgment was entered on

       November 17, 2003, on March 28, 2005, and April 21, 2014 respectively.

       Crawford committed qualifying offenses on October 27, 2003, November 30,

       2003, and January 5, 2008. Corresponding judgments were entered on

       December 22, 2003, September 12, 2005, and September 3, 2014. Klahn

       committed the offenses on August 24, 2002, December 30, 2007, and August

       22, 2011. Judgment on those qualifying offenses was entered on November 27,

       2002, July 3, 2008, and October 4, 2013, respectively. Martin’s offenses were

       committed on January 4, 2004, February 19, 2008, and November 14, 2008,

       with one judgment entered on February 23, 2004, and two judgments entered

       on April 14, 2014. Lastly, Panozzo committed qualifying offenses on February

       7, 2004, April 21, 2007, and December 23, 2011. Judgments were entered on

       March 14, 2004, October 19, 2007, and April 28, 2014.


[14]   Although the time between each Appellee’s first and third HTV qualifying

       judgment exceeded ten years, at least one of each Appellee’s three judgments

       was entered after July 1, 2012, when subsection 4(e) became effective.

       Accordingly, the BMV used the Appellee’s offense dates to calculate each

       Appellee’s HTV status. Classifying each Appellee as an HTV, the BMV was


       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 8 of 19
       required to suspend their driving privileges for ten years. See I.C. § 9-30-10-5(b)

       (“the bureau shall suspend the person’s driving privileges”).


[15]   Nevertheless, the trial court concluded that subsection 4(e) rendered the statute

       unconstitutional ex post facto as applied to Appellees under both the United

       States and the Indiana Constitutions. The trial court reasoned that but for the

       amendment, which was enacted after each Appellee committed his third HTV

       qualifying offense, the Appellees would not have been deemed habitual traffic

       violators because each Appellee’s third judgment occurred more than 10 years

       after his first. It is only when the commission date of the offense is used, each

       Appellee falls within the ten-year HTV time period. The BMV now disputes

       the trial court’s application of the ex post facto clause


                                            III. Ex Post Facto Clause


[16]   Both the U.S. Constitution and our state Constitution contain prohibitions

       against ex post facto laws. Article 1, Section 10 of the United States Constitution

       states that “[n]o State shall . . . pass any . . . ex post facto Law.” The Indiana

       Constitution provides that “[n]o ex post facto law . . . shall ever be passed.”

       IND. CONST. art. I, § 24. Among other things “[t]he ex post facto prohibition

       forbids Congress and the States to enact any law ‘which imposes a punishment

       for an act which was not punishable at the time it was committed; or imposes

       additional punishment to that then prescribed.’” Weaver v. Graham, 450 U.S.

       24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri, 71

       U.S. (4 Wall.) 277, 325-36, 18 L.Ed. 356 (1867)) (footnote omitted). The


       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 9 of 19
       underlying purpose of the ex post facto clause is to give effect to the fundamental

       principle that persons have a right to a fair warning of that conduct which will

       give rise to criminal penalties. Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind.

       2006) cert denied 549 U.S. 996 (2006). Although both provisions are similarly

       worded, our supreme court acknowledged in Wallace that we “nonetheless

       apply an independent analysis when interpreting provisions in our own

       [C]onstitution.” Wallace v. State, 905 N.E.2d 371, 377-78 (Ind. 2009), reh’g

       denied. “The Indiana Constitution has unique vitality, even where its words

       parallel federal language.” Id. at 378 (quoting State v. Gerschoffer, 763 N.E.2d

       960, 965 (Ind. 2002)). As such, “[w]hen we interpret language in our state

       [C]onstitution substantially identical to its federal counterpart, ‘we may part

       company with the interpretation of the Supreme Court of the United States or

       any other court based on the text, history, and decisional law elaborating the

       Indiana constitutional right.’” Id. (quoting Ajabu v. State, 693 N.E.2d 921, 929

       (Ind. 1998)). “When interpreting similarly worded provisions in the Indiana

       Constitution, we often rely on federal authority to inform our analysis, even

       though the outcome may be different. Id. (quoting Collins v. Day, 644 N.E.2d

       72, 75 (Ind. 1994)).


[17]   Here, the State does not dispute that the application of subsection 4(e) creates

       an ex post facto effect as to these Appellees. Each Appellee committed his third

       HTV-qualifying offense prior to the enactment of the statutory amendment, and

       received a judgment on the offense after the amendment took effect.

       Calculating the ten-year term for the HTV determination based on the guideline

       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 10 of 19
       enacted in subsection 4(e)—the date of the offense—the BMV suspended

       Appellees’ driving privileges for a period of ten years. See I.C. § 9-30-10-4(b),

       (e); -5(b).


[18]   We have previously stated that the constitutional prohibitions against ex post

       facto criminal sanctions require that criminal proceedings be governed by the

       statutory provision in effect at the time of the offense. Settle v. State, 709 N.E.2d

       34, 35 (Ind. Ct. App. 1999). Applying this well-established legal adage, we

       should apply the version of I.C. § 9-30-10-4 in effect at the time of the

       commission of the third triggering HTV-offense. However, we have noted that

       the ex post facto clause “‘does not give a criminal a right to be tried, in all

       respects, by the law in force when the crime charged was committed.’” Hayden

       v. State, 771 N.E.2d 100, 102 (Ind. Ct. App. 2002) (quoting Dobbert v. Florida,

       432 U.S. 282, 293, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977)), trans. denied. The

       clause is not designed “to limit legislative control of remedies and modes of

       procedure which do not affect matters of substance.” Id. “Even though it may

       work to the disadvantage of a defendant, a procedural change is not ex post

       facto.” Id.


[19]   Our first task then is to determine whether our General Assembly’s amendment

       of I.C. § 9-30-10-4(e) is procedural or substantive for purposes of the ex post facto

       provisions of both the Indiana and United States Constitutions. We have

       previously noted that “‘[p]rocedural, adjective or remedial law is that portion of

       the law which prescribes the method of enforcing a right or obtaining a redress

       for the invasion of that right. Substantive law, on the other hand, is that
       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 11 of 19
       portion of the law which creates, defines and regulates rights.’” Id. (quoting

       State v. Fletcher, 717 P.2d 866, 870 (Ariz. 1986)). “An amendment is

       ‘procedural in nature for purposes of the ex post facto doctrine, and may be

       applied to crimes committed before the effective date’ if it ‘neither changes the

       elements of the crime nor enlarges its punishment.’” Weaver v. State, 845

       N.E.2d 1066, 1070 (Ind. Ct. App. 2006) (quoting Ritchie v. State, 809 N.E.2d

       258, 264 (Ind. 2004), reh’g denied, cert. denied 546 U.S. 828 (2005)), trans. denied.


[20]   In Ramon v. State, 888 N.E.2d 244, 249 (Ind. Ct. App. 2008), the State sought to

       amend its information, charging Ramon with Class A felonies instead of Class

       B felonies. Id. In light of the supreme court’s ruling in Fajardo v. State, 859

       N.E.2d 1201 (Ind. 2007), 2 the trial court denied the State’s proposed

       amendment as untimely. Id. Seven days prior to Ramon’s trial, our legislature

       amended I.C. § 35-34-1-5 and the trial court granted the State’s motion to

       reconsider its request to amend the charging information, charging Ramon with

       Class A felonies. Id. After Ramon was found guilty of the Class A felonies, he

       appealed, claiming an ex post facto application of the legislative amendment. Id.

       at 250. This court held that the application of the revised Indiana Code section

       35-34-1-5 did not violate the ex post facto provisions of the Indiana and United




       2
         In Fajardo, decided in January 2007, our supreme court interpreted I.C. § 35-34-1-5, which addresses the
       amendment of charges, as requiring that matters of substance be amended no later than thirty days before the
       omnibus date. Fajardo, 859 N.E.2d at 1208. On May 8, 2007, a revision of I.C. § 35-34-1-5 became effective,
       essentially codifying pre-Fajardo law, in which amendments of charges related to matters of substance are
       allowed at any time before trial as long as the amendment does not prejudice the substantial rights of the
       defendant. See P.L. 178-2007, SEC. 1, eff. May 8, 2007.

       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015                     Page 12 of 19
       States Constitutions because the statutory amendment was procedural. Id. at

       252. In reaching this determination, we concluded that the revised statute

       defined the procedures the State must follow in order to amend a charging

       information and that the revision did not create any new crimes, change the

       elements of any crime or alter any sentencing statutes. Id.


[21]   Similarly, in Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008), trans. denied,

       this court took Ramon’s analysis one step further and found that strong and

       compelling reasons existed favoring retroactive application of the revised

       version of I.C. § 35-34-1-5(b). In Hurst, we observed the following:

               For over twenty years prior to Fajardo, case law regularly permitted
               amendments related to matters of substance as long as the substantial
               rights of the defendant were not prejudiced, regardless of whether the
               amendments were untimely under I.C. § 35-34-1-5(b). On January 16,
               2007, our [s]upreme [c]ourt changed course and held that the statute
               clearly required amendments of substance to be made not less than
               thirty days before the omnibus dates, even if a defendant’s substantial
               rights were not prejudiced by the amendment. The legislature
               immediately responded to Fajardo by amending the statute, effective
               May 8, 2007, to reflect the pre-Fajardo law (i.e., amendments of
               substance permitted anytime before trial so long as the defendant’s
               substantial rights are not prejudiced). Thus, Fajardo was superseded by
               statute in less than four months. This prompt return to pre-Fajardo law
               indicates urgency in the legislature’s desire to negate the effects of
               Fajardo. Though the legislature did not expressly provide for
               retroactive application of the amended statute, we are confident that
               this was the clear intent of such legislation.
       Id. (internal citations omitted). See also Gomez v. State, 907 N.E.2d 607 (Ind. Ct.

       App. 2009), trans. denied.




       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 13 of 19
[22]   Likewise, here, our legislature explained the “method of enforcing” the HTV

       determination through its addition of subsection 4(e). See Hayden, 771 N.E.2d

       at 102. Upon the 2012 addition of the subsection, the legislature clarified that

       I.C. § 9-30-10-4 is not triggered at the time of the commission of the offense, but

       at the time of the judgment for the third qualifying HTV offense. Prior to the

       amendment, the statute provided that a person who obtains three qualifying

       judgments within ten years is an HTV subject to a ten year administrative

       suspension of driving privileges. I.C. § 9-30-10-4(b)(2010). The added

       subsection 4(e) merely established that even though the application is triggered

       by the judgment of the third qualifying offense, the dates of the offenses are to

       be used to calculate whether the qualifying events occurred within a ten-year

       period. See I.C. § 9-30-10-4(b),(e) (Supp. 2013). Although as applied to

       Appellees, subsection 4(e) became effective after the commission of the third

       qualifying offense but prior to its judgment, the amendment “neither change[d]

       the elements of the crime nor enlarge[d] its punishment.’” Weaver, 845 N.E.2d

       at 1070. The fact that an element of the HTV determination “‘draws upon

       antecedent facts’” does not make I.C. § 9-30-10-4(e) an ex post facto law. United

       States v. Hemmings, 258 F.3d 587, 594 (7th Cir. 2001) (quoting Cox v. Hart, 260

       U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (1922)). See also Funk v. State, 427

       N.E.2d 1081, 1087 (Ind. 1981) (“That prior crimes are involved in an habitual

       offender prosecution does not change the fact [that] the penalty is imposed only

       for the last crime committed.”); Simmons v. State, 962 N.E.2d 86, 89-90 (Ind. Ct.

       App. 2011) (The enhancement of an OWI conviction to a Class C felony based

       on an enhancement statute enacted after his prior conviction for OWI causing
       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 14 of 19
       death means that “Simmons is not being re-punished for his prior crime, nor

       has the penalty for his prior crime been enhanced. He is simply being punished

       as a recidivist based upon his most recent act of OWI”).


[23]   The HTV statute aims to regulate the dangerous conduct of the driver, and is a

       “protection of the remaining public using the highways.” Hamilton v. State ex

       rel. Van Natta, 323 N.E.2d 659, 660 (Ind. Ct. App. 1975), reh’g denied, appeal

       dismissed, 424 U.S. 901 (1976) (quoting State ex rel. Van Natta v. Rising, 310

       N.E.2d 873, 875 (Ind. 1974)). Because the addition of subsection 4(e) to the

       HTV statute only sought to clarify the calculation method used in the HTV

       determination, it did not amend the offense nor alter the penalty and was

       procedural in nature. See Weaver, 845 N.E.2d at 1070. Even though, as here,

       where the statutory amendment “may work to the disadvantage of a

       defendant,” this hardship does not propel a procedural change into the ex post

       facto realm. Hayden, 771 N.E.2d at 102. Accordingly, we reverse the trial

       court’s judgment.


                                                CONCLUSION

[24]   Based on the foregoing, we conclude that Indiana Code section 9-30-10-4(e),

       which requires the BMV to use the dates of the offenses rather than the dates of

       the judgments in determining a person’s status as a HTV, is a procedural

       amendment which does not violate the ex post facto clauses of the Indiana and

       United States Constitutions.


[25]   Reversed.

       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 15 of 19
[26]   Altice, J. concurs


[27]   Brown, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 16 of 19
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Kent W. Abernathy,                                        Court of Appeals Case No.
                                                                 45A03-1503-MI-73
       Commissioner of the Indiana
       Bureau of Motor Vehicles and
       Bernard Carter, Prosecuting
       Attorney for Lake County,
       Appellants-Respondents,

               v.

       Eric C. Gulden, Jeremy
       Crawford, David J. Klahn, John
       P. Martin, and James M.
       Panozzo,
       Appellees-Petitioners.




       Brown, Judge, dissenting.

[28]   I respectfully dissent from the majority’s conclusion that the addition of

       subsection (e) to the habitual violators statute at Ind. Code § 9-30-10-4 was

       procedural in nature. The majority concludes that the amendment did not


       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015            Page 17 of 19
       change the elements of the habitual violator offense, but rather sought only to

       clarify the calculation method used in the habitual violator determination. I

       disagree.


[29]   Prior to the enactment of subsection (e), Ind. Code § 9-30-10-4 provided only

       that a person who obtained three qualifying judgments within ten years was a

       habitual violator. Ind. Code § 9-30-10-4(b) (2010). Under that version of the

       statute, based on the dates judgments were entered on their qualifying offenses,

       Appellees would not have been deemed or determined to be habitual violators.

       Following the enactment of subsection (e), the dates of the offenses, rather than

       the dates of the judgments, are used in “determining the number of judgments

       accumulated within a ten (10) year period” and thus the elements of the

       habitual offender offense are changed. Ind. Code § 9-30-10-4(e) (2012) (enacted

       by Pub. L. No. 125-2012, § 349). As the elements are different, this change was

       not merely procedural in nature.


[30]   As the majority states, an amendment is procedural for ex post facto purposes, if

       it “neither changes the elements of the crime nor enlarges its punishment.”

       Ritchie v. State, 809 N.E.2d 258, 264 (Ind. 2004), reh’g denied, cert. denied, 546

       U.S. 828, 126 S. Ct. 42 (2005). As applied to Appellees, the enactment of

       subsection (e) resulted in determinations, specifically that Appellees were

       habitual violators, that were not and could not have been made prior to the

       change in the statute. While the majority may be correct that subsection (e)

       clarifies the calculation method used to determine whether persons are habitual

       violators under Ind. Code § 9-30-10-4, that clarification as applied to Appellees

       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 18 of 19
       defined persons as habitual violators who would not have been previously

       defined as such. I believe that the enactment of subsection (e) changed the

       elements of the habitual violator offense as to Appellees, that the amendment

       was not procedural in nature, and that as applied to Appellees the amendment

       violates the prohibition on ex post facto laws in the Indiana and United States

       Constitutions.


[31]   For the foregoing reasons, I would affirm the rulings of the trial court.




       Court of Appeals of Indiana | Opinion 45A03-1503-MI-73 | November 30, 2015   Page 19 of 19
