      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                 FILED
      regarded as precedent or cited before any
                                                                       Dec 30 2016, 5:51 am
      court except for the purpose of establishing
      the defense of res judicata, collateral                               CLERK
                                                                        Indiana Supreme Court
      estoppel, or the law of the case.                                    Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Steven E. Ripstra                                       Gregory F. Zoeller
      Jasper, Indiana                                         Attorney General of Indiana
                                                              Ellen H. Meilaender
                                                              Deputy Attorney General
                                                              Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Jason E. Hammock,                                       December 30, 2016
      Appellant-Petitioner/Defendant,                         Court of Appeals Case No.
                                                              63A01-1605-CR-1117
              v.                                              Appeal from the
                                                              Pike Circuit Court
      State of Indiana,                                       The Honorable
      Appellee-Respondent/Plaintiff.                          Jeffrey L. Biesterveld, Judge
                                                              Trial Court Cause No.
                                                              63C01-1512-F6-605



      Kirsch, Judge.


[1]   The driving privileges of Jason E. Hammock (“Hammock”) were

      administratively suspended by the Indiana Bureau of Motor Vehicles (“the


      Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016   Page 1 of 13
      BMV”) on the grounds that he refused to submit to a chemical test as required

      by Indiana Code section 9-30-6-7. Hammock filed a petition requesting that the

      trial court review whether his license was properly suspended. After a hearing,

      at which no State witnesses testified, the trial court denied Hammock’s petition.

      On appeal, Hammock contends that the trial court erred when it found as basis

      for suspension that Hammock had refused a chemical test. For reasons

      explained below, we dismiss this appeal as moot, but remand to the trial court

      with instructions to comply with the terms agreed to during Hammock’s plea

      hearing.


[2]   We dismiss and remand with instructions.


                                 Facts and Procedural History
[3]   On December 27, 201, Deputy Paul Collier (“Deputy Collier”) of the Pike

      County Sheriff’s Office responded to a report of a single-car accident. At the

      scene, he found a driver, later identified as Hammock, who admitted he had

      been drinking. Hammock, who was injured in the accident, refused treatment

      at the scene, and Deputy Collier arrested him and took him to the county jail.

      Upon their arrival, the jail nurse saw Hammock’s injuries and advised Deputy

      Collier to take Hammock directly to the hospital where, among other things,

      Hammock “got a blood test.” Tr. at 24. After the medical treatment was

      completed, Deputy Collier transported Hammock to jail, where he remained

      incarcerated throughout the criminal proceedings.




      Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016   Page 2 of 13
[4]   Deputy Collier completed a probable cause affidavit, setting forth the facts

      leading to Hammock’s arrest, and filed that affidavit with the trial court on

      December 29, 2015. The affidavit in pertinent part provided: (1) Hammock

      ran a stop sign, crossed the intersection, jumped a ditch, and landed in a field;

      (2) Hammock’s breath smelled of alcohol and he had watery eyes and was

      unstable on his feet; (3) an empty beer can was next to the driver’s seat and

      seven unopened beers were in a cardboard box on the car floor; (4) Hammock

      admitted he “had drunk some Royal Crown and a six-pack [of beer] prior to

      driving”; (5) the jail nurse advised Deputy Collier to take Hammock directly to

      the hospital; and (6) Deputy Collier gave Hammock a portable breath test, and

      “he had a BAC of .34.” Appellant’s App. at 16-17. In the affidavit, Deputy

      Collier specifically affirmed, “I advised Mr. Hammock of the implied consent

      warning and he refused.” Id. at 17.


[5]   On December 29, 2015, the State charged Hammock with Count 1, operating a

      vehicle while intoxicated1 (“OWI”) as a Class C misdemeanor; Count 2,

      leaving the scene of an accident2 as a Class B misdemeanor; and Count 3, OWI




      1
          See Ind. Code § 9-30-5-2(a).
      2
          See Ind. Code § 9-26-1-1.1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016   Page 3 of 13
      with a prior conviction within the previous five years 3 as a Level 6 felony.

      Appellant’s App. at 7, 9.4


[6]   The trial court found probable cause to believe that Hammock “violated IC 9-

      30-5” (pertaining to operating a vehicle while intoxicated) and forwarded a

      copy of Deputy Collier’s affidavit to the BMV with a recommendation that

      Hammock’s driving privileges be suspended. Id. at 15. Pursuant to Indiana

      Code section 9-30-6-9, the BMV administratively suspended Hammock’s

      driving privileges based on his refusal to submit to a chemical test. In March

      2016, while still in jail, Hammock filed a petition for judicial review of his

      license suspension claiming that a finding of refusal was error, and a hearing on

      that matter was set.


[7]   On April 4, 2016, Hammock pleaded guilty pursuant to a plea agreement to the

      two OWI counts—Count 1 as a Class C misdemeanor and Count 3 as a Level 6

      felony. The trial court accepted Hammock’s plea and the terms of the plea

      agreement, pursuant to which the State and Hammock agreed: (1) Counts 1

      and 3 merged for purposes of sentencing; (2) Hammock would receive a one-




      3
       See Ind. Code § 9-30-5-3(a)(1). This section elevates the offense of operating while intoxicated (“OWI”) to a
      Level 6 felony if defendant has a previous conviction for OWI that occurred within the five years
      immediately preceding the offense being charged. Hammock was convicted of operating a vehicle with a
      blood alcohol concentration of .08 or more, under cause number 63C01-1101-CM-7, on May 19, 2011, which
      was within that five-year window.
      4
       Hammock filed a two-volume appendix with this court. Volume 1 is a table of contents for Volume 2.
      Because we cite only to Volume 2, all references to Appellant’s App. refer to that volume.

      Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016         Page 4 of 13
      year executed sentence on Count 3, of which he had served 100 actual days,5

      had credit for 100 days, and had 165 days left to serve; (3) the State would

      dismiss Count 2; (4) Hammock would pay a fine plus court costs; and (5)

      Hammock’s “driving privileges shall be suspended for zero (0) additional days.”

      Tr. at 11; Appellant’s App. at 34, 41.


[8]   That same day following the plea hearing, the trial court held a second hearing

      to address Hammock’s petition for judicial review of the administrative

      suspension of his license on the basis that he refused to submit to a chemical

      test. At the close of the hearing, the trial court took judicial notice of Deputy

      Collier’s affidavit and its contents and took the matter under advisement. The

      trial court denied Hammock’s petition on April 19, 2016. Hammock now

      appeals. We set forth additional facts where necessary.


                                      Discussion and Decision
[9]   In Indiana, when a person refuses to submit to a chemical test, “the arresting

      officer shall inform the person that refusal will result in the suspension of the

      person’s driving privileges.” Ind. Code § 9-30-6-7(a). If that person: (1) refuses

      to submit to a chemical test after having been advised that the refusal will result

      in the suspension of driving privileges; or (2) submits to a chemical test that




      5
        The 100 days represented Hammock’s incarceration from the date of his arrest, December 27, 2015,
      through and including the date of his plea, April 4, 2016.

      Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016      Page 5 of 13
       results in prima facie evidence of intoxication, the arresting officer shall do the

       following:


               (1) Obtain the person’s driver’s license or permit if the person is
               in possession of the document and issue a receipt valid until the
               initial hearing of the matter held under IC 35-33-7-1.


               (2) Submit a probable cause affidavit to the prosecuting attorney
               of the county in which the alleged offense occurred.


       Ind. Code § 9-30-6-7(b).


[10]   Whenever a judicial officer has determined there is probable cause to believe

       that a person has violated Indiana Code chapter 9-30-5, the clerk of the court

       shall forward to the BMV an affidavit, signed by the arresting officer, stating:

       (1) the grounds for the arresting officer’s belief that the person was OWI in

       violation of Indiana Code chapter 9-30-5; (2) that the person was arrested for a

       violation of Indiana Code chapter 9-30-5; and (3) whether the person refused to

       take a chemical test or submitted to a chemical test that resulted in prima facie

       evidence the person was intoxicated. Ind. Code § 9-30-6-8(a), -8(b). After

       finding probable cause, the trial court must enter an order at the initial hearing

       on the criminal matter setting forth that such person’s driving privileges be

       suspended. Ind. Code § 9-30-6-8(c). The BMV, in turn, must mail notice to

       such person setting forth the length of the suspension and informing the person

       of their right to judicial review pursuant to Indiana Code section 9-30-6-10.

       Ind. Code § 9-30-6-9(d).



       Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016   Page 6 of 13
[11]   The length of administrative suspension depends on the basis for the

       suspension. If the chemical test resulted in prima facie evidence that the person

       was intoxicated, the BMV must suspend the person’s license for 180 days or

       until the BMV is notified by the trial court that the charges have been disposed

       of, whichever comes first. Ind. Code § 9-30-6-9(c). If, however, the basis for

       suspension is refusal to submit to a chemical test, and the person has a prior

       conviction for OWI, the BMV must suspend the driving privileges of that

       person for two years or until the suspension is terminated under Indiana Code

       chapter 9-30-5, whichever comes first. Ind. Code § 9-30-6-9(b). Both statutes

       provide the trial court with the power to terminate the administrative

       suspension as part of defendant’s sentencing on the underlying conviction for

       OWI.


[12]   The policy surrounding the scheme of administrative suspension reflects “the

       toll that drunk driving has taken on the general public and the state’s interest in

       preventing accidents caused by drivers who are intoxicated.” Burnell v. State, 56

       N.E.3d 1146, 1147 (Ind. 2016) (citing Smith v. Cincinnati Ins. Co., 790 N.E.2d

       460, 461 (Ind. 2003)). “To combat the serious harm inflicted by drunk drivers,

       all fifty States and the District of Columbia have enacted laws prohibiting

       motorists from driving with a blood alcohol concentration exceeding a specific

       level.” Id. “Determining whether a driver’s blood alcohol concentration

       exceeds the legal limit requires a test, ‘and many drivers stopped on suspicion of

       drunk driving would not submit to testing if given the option. So every State

       also has long had what are termed “implied consent laws.”’” Id. (quoting


       Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016   Page 7 of 13
       Birchfield v. North Dakota, ___U.S.___, 136 S. Ct. 2160, 2166, 195 L. Ed. 2d 560

       (2016)). Indiana’s implied consent law provides: “A person who operates a

       vehicle impliedly consents to submit to the chemical test provisions of this

       chapter as a condition of operating a vehicle in Indiana.” Id. (citing Ind. Code §

       9-30-6-1). In turn, when a law enforcement officer has probable cause to

       believe a motorist has operated a vehicle while intoxicated, the officer must

       offer the motorist an opportunity to submit to a chemical test. Id. (citing Ind.

       Code § 9-30-6-2(a)). “If a person refuses to submit to a chemical test, the

       arresting officer shall inform the person that refusal will result in the suspension

       of the person’s driving privileges.” Ind. Code § 9-30-6-7(a).


[13]   Here, Deputy Collier submitted an affidavit to the trial court setting forth that

       Hammock’s BAC was .34 and stating that Hammock refused to submit to a

       chemical test. The trial court forwarded that affidavit to the BMV with the

       recommendation that Hammock’s license be suspended. It was on that basis

       that the BMV administratively suspended Hammock’s driving privileges. We

       find nothing in the record before us indicating the duration of that suspension.6


[14]   In March 2016, Hammock petitioned for review of that suspension, and the

       trial court held a hearing in April 2016. During the hearing, Hammock argued

       that, contrary to statements made in Deputy Collier’s affidavit, he did not




       6
         Pursuant to Indiana Code section 9-30-6-9(c), whenever the BMV is required to suspend a person’s driving
       privileges, the BMV shall immediately mail notice to the person’s address contained in the records of the
       BMV stating that the person’s driving privileges will be suspended for a specified period. A copy of that letter
       is not in the record before us.

       Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016           Page 8 of 13
       refuse to submit to a chemical test. As evidence, the State offered only Deputy

       Collier’s affidavit and requested that the trial court take judicial notice of it,

       which the trial court did. The State offered the following pertinent statements

       in closing:


               The only fact in dispute, from what I can tell, is the fact, the one
               sentence in the probable cause affidavit that I advised Mr.
               Hammock of the implied consent warning and he refused. Mr.
               Hammock’s disputing that. Right before that he tested .34 on the
               portable breath test, which is heavily intoxicated. My
               understanding was Mr. Hammock was cooperative throughout
               the entire process. Did admit that he was heavily intoxicated. . .
               . I don’t think there’s any issue. Mr. Hammock voluntarily went
               to the hospital. Got treated. Voluntarily gave up a blood sample
               that gave the test results. I, I don’t think there’s any issue with
               any of that. I don’t dispute any of that. . . . State’s position is I
               believe Mr. Hammock was cooperative. We’re looking at . . . a
               fact issue, that is pretty technical as to whether or not implied
               consent was complied with or not.


       Tr. at 30-31. The trial court took the matter under advisement and later denied

       Hammock’s challenge to his license suspension.


[15]   On appeal, Hammock asserts that the evidence was insufficient as a matter of

       law to sustain the trial court’s determination that he refused to submit to a

       chemical test. Specifically, he contends that in the absence of any testimony

       from Deputy Collier, there was insufficient evidence of his refusal. The denial

       of Hammock’s petition is a final judgment appealable in the manner of a civil

       action. See Ind. Code § 9-30-6-10(g); Upchurch v. State, 839 N.E.2d 1218, 1220

       (Ind. Ct. App. 2005).

       Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016   Page 9 of 13
[16]   Here, the existence of Hammock’s plea agreement and the timing of the review

       hearing present a special set of circumstances.7 The two hearings occurred back

       to back; when the plea hearing was completed, the hearing on the petition for

       judicial review began. During the plea hearing, the trial court, pursuant to the

       terms of the plea agreement, suspended Hammock’s driving privileges for zero

       days. Then, apparently recognizing that Hammock’s license had been

       administratively suspended, the trial court engaged in the following colloquy to

       clarify the status of that suspension.


                THE COURT: And um, there was an administrative suspension.
                Correct, gentlemen? You doing anything with the administrative
                suspension here?


                [PROSECUTOR]: Well it was a refusal, Judge.


                THE COURT: Okay.


                [PROSECUTOR]: So I don’t know if there’s an additional
                administrative suspension.


                THE COURT: Okay.


                [PROSECUTOR]: If so that would be terminated.




       7
         The hearings pertaining to the plea hearing and the petition for review were held within minutes of each
       other, and the transcripts of those hearings were bound in one volume. That double transcript is part of the
       record before us.

       Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016        Page 10 of 13
        THE COURT: So there’s, so there’s no---I mean, it would be


        [PROSECUTOR]: It’s the refusal part.


        THE COURT: Yeah. There’s no, there’s no uh, there’s no
        credit time on, on the refusal, so


        [PROSECUTOR]: Correct.


        THE COURT: So is that your understanding of the agreement,
        sir?


        THE DEFENDANT: Yes sir.


        THE COURT: Okay. And Mr. Aldridge [(Defense Counsel)], is
        that your understanding?


        [DEFENSE COUNSEL]: Yes.


        THE COURT: Mr. Dysert [(Prosecutor)], is that your
        understanding as well?


        [PROSECUTOR]: Yes, Your Honor.


        THE COURT: How about we make it ninety (90) days from the
        defendant’s release from incarceration. Kind of hard for you to pay for it
        while you’re in jail to get your license back. If I give you that much
        time, then when you get out you’ve got ninety (90) days from
        then to get paid. Can you do that?


        THE DEFENDANT: Yeah. Yes sir.



Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016   Page 11 of 13
                THE COURT: Okay. So, it’d be ninety (90) days from his
                release from his executed sentence. . . .


       Id. at 11-13 (emphasis added). The above colloquy clarified the parties’ intent

       under the plea agreement to allow for the reinstatement of Hammock’s license

       no later than December 15, 2016, a date that fell ninety days after his latest

       possible release from jail.8


[17]   In the instant case, Hammock’s plea agreement governs the terms of his license

       suspension. The decision to accept or reject a plea agreement is a matter left to

       a trial court’s discretion. Koontz v. State, 975 N.E.2d 846, 849 (Ind. Ct. App.

       2012), aff’d on reh’g, 983 N.E.2d 194 (Ind. Ct. App. 2013). However, once a

       plea agreement is accepted by the trial court, the plea agreement, like a

       contract, is binding upon all parties and the trial court. Id. Further, if the trial

       court accepts the plea agreement, it is strictly bound by the sentencing

       provisions of the plea agreement and is precluded from imposing any sentence

       other than that required by the agreement. Id. Pursuant to Indiana Code

       section 9-30-6-9, the trial court had the power to terminate Hammock’s

       administrative suspension. Here, once the trial court accepted Hammock’s plea

       agreement, the trial court was bound to suspend Hammock’s driving privileges




       8
         At the time of the plea hearing, and pursuant to the plea agreement, Hammock was sentenced to serve an
       additional 165 days executed. This meant that Hammock’s latest release date from incarceration was
       September 16, 2016 (a date that was 165 days after his April 4, 2016 plea hearing). Pursuant to the colloquy
       held during the plea hearing, Hammock had the right to reinstate his license ninety days after he was released
       from incarceration, resulting in the latest reinstatement date being December 15, 2016 (a date that fell ninety
       days after a September 16, 2016 release date). Tr. at 12-13.

       Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016         Page 12 of 13
       for zero additional days and notify the BMV that Hammock’s license could be

       eligible for reinstatement no later than December 15, 2016, which was ninety

       days after Hammock’s latest release date.


[18]   December 15, 2016 has passed, and, therefore, the issue of whether Hammock

       refused to submit to a chemical test is moot. Accordingly, we decline to

       address that issue. We dismiss this appeal and remand with instructions that

       the trial court notify the BMV, if it has not already done so, that, pursuant to

       Hammock’s plea agreement and to the extent he complies with all other statutes

       and conditions pertaining to the possession of an Indiana driver’s license,

       Hammock is now entitled to the reinstatement of his driving privileges.


[19]   This appeal is dismissed and the case remanded.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 63A01-1605-CR-1117 | December 30, 2016   Page 13 of 13
