MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               May 26 2016, 8:42 am
regarded as precedent or cited before any
                                                                         CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
the defense of res judicata, collateral                                   and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy P. Broden                                       Gregory F. Zoeller
Lafayette, Indiana                                      Attorney General of Indiana
                                                        Karl M. Scharnberg
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric Allen,                                             May 26, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        79A04-1506-CR-601
        v.                                              Appeal from the Tippecanoe
                                                        Circuit Court
State of Indiana,                                       The Honorable Raymond Kirtley,
Appellee-Plaintiff                                      Senior Judge
                                                        Trial Court Cause No.
                                                        79C01-1410-FC-17



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016           Page 1 of 10
                                            Case Summary
[1]   Eric Allen (“Allen”) appeals his conviction for Operating a Motor Vehicle

      While Privileges Are Forfeited for Life, a Class C felony,1 raising the sole issue

      of whether there was sufficient evidence to support his conviction. We affirm.



                             Facts and Procedural History
[2]   At approximately 3:30 a.m. on June 21, 2014, Tippecanoe County Sheriff

      Department Deputy Alexander Feistel (“Deputy Feistel”) and Sergeant Robert

      Hainje (“Sergeant Hainje”) were on patrol in a marked squad car in Lafayette,

      Indiana when they saw three vehicles quickly turn from 18th Street onto the

      Veteran’s Memorial Parkway. As the cars headed east, they appeared to be

      racing. Deputy Feistel activated his radar and clocked the second car, a late

      model Chevrolet Caprice, going 68 m.p.h. and the third car, a Cadillac

      Escalade, going 71 m.p.h. in the 35 m.p.h. zone. The Escalade passed the

      Caprice, then both turned south onto Concord Road as the lead car continued

      on Veteran’s Memorial Parkway.


[3]   The officers pursued the Caprice and Escalade onto Concord, where they

      observed the Caprice weaving and swerving over the center line. Deputy

      Feistel activated his emergency lights when the cars turned east onto Chilton




      1
        Ind. Code § 9-30-10-17 (Supp. 2013). This offense is now a Level 5 felony. We refer to the version of the
      statute in effect at the time Allen committed the offense.

      Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016               Page 2 of 10
      Drive, the entrance to a residential subdivision. The Escalade turned left and

      stopped in an alley next to 2576 Chilton Drive. The Caprice also pulled into

      the alley, stopping just ahead of the Cadillac.


[4]   Both officers exited the squad car. From his vantage point, Sergeant Hainje

      observed an African American man with facial stubble sitting low in the driver’s

      seat of the Caprice. As Deputy Feistel approached the Caprice, the car crept

      forward. Deputy Feistel yelled at the driver to stop while flashing a light at the

      side mirror. The Caprice paused, then turned right and accelerated into the

      alley running behind the houses and parallel to Chilton Drive. Deputy Feistel

      returned to his car and attempted to cut off the Caprice at the next intersection.

      He did not intercept the car, but shortly after saw a person on foot running at

      full speed southbound across Chilton.


[5]   Meanwhile, Sergeant Hainje called for backup and gave descriptions of the

      Caprice and driver. Sergeant Hainje then interviewed the occupants of the

      Escalade, who indicated that Allen had been with them at Aces Pub on 18th

      Street and left in the Caprice when they left in the Escalade. A few minutes

      later, a responding officer located the unoccupied Caprice parked in the

      driveway behind 2708 Chilton Drive. Sergeant Hainje walked over and

      observed in the dew-covered grass a single set of footprints leading southbound

      away from the car and across Chilton into a weedy empty lot.


[6]   At approximately 3:50 a.m., Deputy Nathan Beever (“Deputy Beever”), who

      had also responded to the call for backup, encountered a man matching the


      Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016   Page 3 of 10
      suspect’s description, later identified as Allen, walking just south of Chilton

      Drive. Allen’s shoes were wet and he had grass, burs, and weeds on his clothes

      and shoes. He was sweating heavily and showed signs of intoxication,

      including a strong alcohol odor on his breath, red watery eyes, slurred speech,

      and unstable balance. He admitted that he had been drinking at Aces Pub, but

      denied that he had been driving. He also stated that he lived with his sister at

      2576 Chilton Drive. The Caprice was registered to his sister at that address.


[7]   Deputy Beever transported Allen to the Tippecanoe County Sherriff’s Office to

      take a sobriety test. Allen refused. Deputy Beever obtained a warrant for a

      blood draw, and Allen was taken to the hospital to complete it. The lab results

      showed a blood alcohol concentration of 0.19 percent.


[8]   On October 31, 2014, Allen was charged with Operating a Motor Vehicle

      While Privileges Are Forfeited for Life, a Class C felony; Resisting Law

      Enforcement, as a Class D felony;2 and Operating a Vehicle While Intoxicated,

      as a Class A misdemeanor3 (“Count 3”). The State also alleged Allen was a

      Habitual Substance Offender.4 On December 29, 2014, the trial court granted




      2
          I.C. § 35-44.1-3-1(b)(1)(A).
      3
          I.C. § 9-30-5-2(b).
      4
          I.C. § 35-50-2-10.


      Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016   Page 4 of 10
       the State’s motion to add a charge of Operating a Vehicle with At Least Fifteen-

       Hundredths (0.15) Gram of Alcohol, a Class A misdemeanor5 (“Count 5”).


[9]    A bifurcated jury trial was conducted on April 15 and 16, 2015. During phase

       two, the State introduced into evidence Jasper Circuit Court records showing

       that on November 13, 2007, under cause number 37C01-0705-FD-268, Allen

       agreed to plead guilty to Operating a Vehicle as Habitual Traffic Violator, a

       Class D felony,6 and that as part of that plea agreement, his driving privileges

       would be suspended for life. The Jasper Circuit Court accepted the plea

       agreement and entered judgment of conviction on December 18, 2007. The

       State also introduced a certified copy of Allen’s driving record, which included

       the Jasper Circuit Court’s December 18, 2007 order, as well as a December 26,

       2007 nunc pro tunc order stating that the court “on its own motion, now finds

       that this Court’s order of December 18, 2007, is erroneous in that it fails to

       reflect that [Allen’s] driver’s privileges are suspended for his lifetime” and

       corrected the order to include the suspension. (Exhibit 6.)


[10]   At the conclusion of trial, Allen was found guilty of all charges and the trial

       court entered judgments of conviction and adjudicated Allen a habitual

       substance offender. On May 11, 2015, the trial court held a sentencing hearing




       5
           I.C. § 9-30-5-1(b).
       6
           I.C. § 9-30-10-16(a)(1).


       Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016   Page 5 of 10
       and imposed a total aggregate sentence of fourteen years executed in the

       Indiana Department of Correction.


[11]   On June 10, 2015, Allen filed a notice of appeal. On July 27, 2015, Allen, pro

       se, filed a motion to correct erroneous sentence, and the State responded with its

       own motion to correct error on September 8, 2015.7 The court held a hearing

       on the motions, and on November 12, 2015, issued an order merging Counts 3

       and 5, and imposing a modified aggregate sentence of six years executed in the

       DOC followed by eight years to be served in the Tippecanoe County

       Community Corrections.


[12]   Allen now appeals.



                                    Discussion and Decision
[13]   Allen challenges only the sufficiency of the evidence to support his conviction

       for operating a motor vehicle while privileges are forfeited for life. Our

       standard of review for sufficiency of the evidence claims is well settled. We

       consider only the probative evidence and reasonable inferences supporting the

       verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the

       credibility of witnesses or reweigh evidence. Id. We will affirm the conviction



       7
        Meanwhile, the Tippecanoe County Clerk filed a notice of completion of transcript on September 23, 2015,
       and this Court acquired jurisdiction on that date pursuant to Indiana Appellate Rule 8. On October 7, 2015,
       Allen filed with this Court a motion to stay consideration of appeal so that the trial court could address the
       motions to correct error. On October 16, 2015, this Court granted Allen’s motion to stay, ordered the trial
       court to rule on the motions to correct error within thirty days, and ordered Allen to submit a status report
       within forty-five days.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016                Page 6 of 10
       unless “no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270

       (Ind. 2000)). “The evidence is sufficient if an inference may reasonably be

       drawn from it to support the verdict.” Id. at 147 (quoting Pickens v. State, 751

       N.E.2d 331, 334 (Ind. Ct. App. 2001)).


[14]   Pursuant to Indiana Code section 9-30-10-17(a), a person who operates a motor

       vehicle after the person’s driving privileges are forfeited for life under Indiana

       Code section 9-30-10-16 commits a Class C felony. The State charged that, on

       or about June 21, 2014, Allen “did operate a motor vehicle after his driving

       privileges were forfeited for his lifetime under Indiana Code 9-30-10-16

       pursuant to a conviction in the Jasper Circuit Court, Jasper County, State of

       Indiana under cause number 37C01-0705-FD-268, on or about December 18,

       2007[.]” (App. 121.)


[15]   At trial, the State introduced ample evidence that Allen was driving a Chevrolet

       Caprice through the streets of Lafayette in the early morning hours of June 21,

       2014. The State also introduced into evidence Jasper Circuit Court records and

       Allen’s driver’s record, both of which showed that Allen was convicted in the

       Jasper Circuit Court on December 18, 2007 of a violation of Indiana Code

       section 9-30-10-16(a). The statute defining that offense also provides: “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.” I.C. §

       9-30-10-16(c). Consistent with this provision, Allen’s plea agreement provided

       that his driving privileges would be forfeited for his lifetime. The Jasper Circuit

       Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016   Page 7 of 10
       Court’s nunc pro tunc order further clarified that Allen’s driving privileges were,

       indeed, forfeited for life. There was sufficient evidence to support Allen’s

       conviction.


[16]   Allen, however, argues there was insufficient evidence to support his conviction

       because he did not have knowledge that his driving privileges were forfeited for

       life. As this Court has previously held, “[k]nowledge of a lifetime forfeiture is

       not an element of Indiana Code § 9-30-10-17, so proof of knowledge is not

       necessary to sustain a conviction.” Pillow v. State, 986 N.E.2d 343, 345 (Ind. Ct.

       App. 2013) (citing Brock v. State, 955 N.E.2d 195, 205 (Ind. 2011), cert. denied).

       In this way, Section 9-30-10-17 operates as a strict liability offense with no

       knowledge requirement. Brock, 955 N.E.2d at 205.


[17]   Nevertheless, Allen contends that because a violation of Section 9-30-10-17 is a

       Class C felony carrying a sentencing range of two to eight years, I.C. § 35-50-2-

       6, the imposition of strict liability to the offense violates his due process rights

       guaranteed under the Fourteenth Amendment to the U.S. Constitution.8 Allen

       relies on U.S. v. Wulff, 758 F.2d 1121 (6th Cir. 1985), in which the Sixth Circuit

       Court of Appeals affirmed a district court’s finding that a felony conviction

       under the Migratory Bird Treaty Act, 16 U.S.C. § 703 et seq., violated the due

       process clause of the Fifth Amendment because the felony offense did not

       require proof of scienter, was not known to the common law, and the penalty



       8
        “[N]or shall any State deprive any person of life, liberty, or property, without due process of law[.]” U.S.
       Const. amend. XIV, § 1.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016                 Page 8 of 10
       was severe and would result in irreparable damage to one’s reputation. Wulff,

       758 F.2d at 1122. There, the court found that a felony conviction and

       maximum sentence of two years or a $2000 fine, or both, constituted a

       “substantial” penalty carrying risk of reputation damage. Id. at 1125.


[18]   Assuming, without deciding, that Allen’s as applied challenge to the statute

       would be otherwise meritorious, Allen’s argument ultimately is unavailing

       because there is evidence that Allen had knowledge that his license was

       forfeited for life. Certified copies of Jasper Circuit Court records show that

       Allen signed a plea agreement stating that his “driving privileges will be

       suspended for his lifetime.” (Exhibit 7.) The circuit court accepted his plea

       agreement and entered judgment of conviction on December 18, 2007.

       Consistent with the plea agreement, the lifetime suspension of his driving

       privileges was noted in the court’s December 26, 2007 nunc pro tunc order and

       the abstract of judgment, both of which were included in Allen’s driver’s record.

       Further, a table in Allen’s driver’s record lists at least three separate “indefinite”

       suspensions (including the December 18, 2007 suspension) and shows that

       notice was mailed to Allen on January 28, 2005, January 8, 2008, and January

       10, 2008. (Exhibit 6.) In light of this evidence of knowledge, we cannot

       conclude that Allen was denied due process of law when he was convicted of

       operating a motor vehicle while privileges are forfeited for life.



                                               Conclusion
[19]   There was sufficient evidence to support Allen’s conviction.

       Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016   Page 9 of 10
[20]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 79A04-1506-CR-601 | May 26, 2016   Page 10 of 10
