                                                                           Apr 09 2015, 9:14 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Suzy St. John                                              Gregory F. Zoeller
      Marion County Public Defender                              Attorney General of Indiana
      Indianapolis, Indiana
                                                                 Kenneth E. Biggins
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Terrence Strong,                                           April 9, 2015

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A02-1406-CR-412
              v.
                                                                 Appeal from the Marion Superior
      State of Indiana,                                          Court
                                                                 The Honorable Kimberly J. Brown,
      Appellee-Plaintiff,
                                                                 Judge
                                                                 Cause No. 49F07-1108-CM-60947




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a bench trial, Terrence Strong was convicted of operating a vehicle

      while intoxicated (“OWI”), a Class A misdemeanor, and sentenced to 365

      days, all but ninety days suspended to probation. He was also found to have

      committed the traffic infraction of failing to stop at a stop sign, for which a fine

      Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015                     Page 1 of 15
      was imposed. Strong did not file a notice of appeal within thirty days of the

      final judgment in his case, but he was later granted permission to file a belated

      notice of appeal. Strong now raises the sole issue of whether his traffic

      infraction and fine must be vacated because he was subjected to double

      jeopardy in violation of the Indiana Constitution. The State cross-appeals,

      contending the trial court improperly granted Strong’s motion to file a belated

      notice of appeal. Concluding the trial court did not abuse its discretion in

      allowing Strong to file a belated notice of appeal but that Strong was not subject

      to double jeopardy, we affirm.



                             Facts and Procedural History
[2]   In the afternoon of August 26, 2011, Indianapolis Metropolitan Police

      Department Officer Timothy Elliott was driving west on 38th Street. When he

      was within a block of the intersection with Denwood Drive, he observed Strong

      turn right from Denwood Drive into the left-most lane of westbound 38th Street

      without stopping. Officer Elliott was forced to slam on his brakes to avoid

      colliding with Strong. Because Officer Elliott believed Strong had failed to stop

      at a stop sign and had improperly changed lanes, he initiated a traffic stop

      during which he noticed Strong exhibited signs of intoxication. A subsequent

      chemical test showed Strong had a blood alcohol concentration of .10.


[3]   The State charged Strong with OWI, a Class A misdemeanor; operating a

      vehicle with an alcohol concentration between 0.08 and 0.15 grams of alcohol

      per 100 milliliters of blood, a Class C misdemeanor; and failing to stop at a stop

      Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015     Page 2 of 15
      sign, a Class C infraction. Following a bench trial, Strong was found guilty of

      all charges on July 30, 2013. The trial court merged the two operating

      convictions, sentencing Strong to one year for the Class A misdemeanor, all

      suspended to probation but for ninety days to be served in community

      corrections. The trial court also imposed fines and costs of $100 with respect to

      the traffic infraction. Those fines and costs were later reduced to $1.00.


[4]   On March 28, 2014, Strong filed a Verified Motion to Set Hearing Regarding

      Permission to File a Belated Notice of Appeal. The trial court granted the

      motion and held a hearing on May 2, 2014, at which Strong demonstrated that

      neither his attorney nor the trial court advised him of his right to appeal his

      convictions and sentence. At the conclusion of the hearing, the trial court

      granted his motion to file a belated notice of appeal and stated he had thirty

      days from May 2, 2014 in which to file his notice of appeal.


[5]   On June 5, 2014, Strong filed a Verified Second Motion for Leave to File a

      Belated Notice of Appeal, alleging that Strong’s Belated Notice of Appeal was

      not filed on or before June 2, 2014 because “[d]ue to a failure of the internal

      processes within the Appellate Division of the Marion County Public Defender

      Agency, Mr. Strong’s file was misplaced. This error . . . is entirely the fault of

      counsel and the Marion County Public Defender Agency Appellate Division

      and not of Mr. Strong.” Appellant’s App. at 60. On June 6, 2014, the trial

      court granted the second motion and ordered “that [Strong] is again granted

      leave to file a Belated Notice of Appeal as of the date of this Order[.] Said



      Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015    Page 3 of 15
      Notice of Appeal shall be filed no later than 7-6-14.” Id. at 62. Strong filed his

      Belated Notice of Appeal on June 16, 2014.



                                  Discussion and Decision
                                 I. Belated Notice of Appeal
[6]   We first address the State’s cross-appeal issue: whether the trial court properly

      granted Strong permission to file a belated notice of appeal. Indiana Post-

      Conviction Rule 2 provides:

              Eligible defendant defined. An “eligible defendant” for purposes of this
              Rule is a defendant who, but for the defendant’s failure to do so
              timely, would have had the right to challenge on direct appeal a
              conviction or sentence after a trial or plea of guilty by filing a notice of
              appeal, filing a motion to correct error, or pursuing an appeal.
              ***
              Section 1. Belated Notice of Appeal
                       (a) Required Showings. An eligible defendant convicted after a
              trial or plea of guilty may petition the trial court for permission to file a
              belated notice of appeal of the conviction or sentence if:
                                (1) the defendant failed to file a timely notice of appeal;
                                (2) the failure to file a timely notice of appeal was not
                                due to the fault of the defendant; and
                                (3) the defendant has been diligent in requesting
                                permission to file a belated notice of appeal under this
                                rule.
[7]   Because the trial court held a hearing on Strong’s motion to file a belated notice

      of appeal, we review the trial court’s ruling for an abuse of discretion. Cole v.

      State, 989 N.E.2d 828, 830 (Ind. Ct. App. 2013), trans. denied. The defendant

      bears the burden of proving by a preponderance of the evidence that he was
      Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015                 Page 4 of 15
      without fault in the delay and was diligent in pursuing permission to file his

      belated notice of appeal. Id. As there are no set standards for showing lack of

      fault or diligence, each case turns on its own facts. Moshenek v. State, 868

      N.E.2d 419, 423 (Ind. 2007). However, relevant factors to be considered

      include: “the defendant’s level of awareness of his procedural remedy, age,

      education, familiarity with the legal system, whether the defendant was

      informed of his appellate rights, and whether he committed an act or omission

      which contributed to the delay.” Id. (citation omitted). “Because diligence and

      relative fault are fact sensitive, we give substantial deference to the trial court’s

      ruling.” Id.


[8]   The State first alleges that Strong failed to prove that he had been diligent in

      pursuing his appeal. At the hearing on his motion for permission to file a

      belated notice of appeal, Strong testified that neither the trial court nor his trial

      counsel made him aware of his appellate rights. The transcript of his

      sentencing hearing, which was admitted into evidence, and the testimony of his

      trial counsel support his statements. In addition, Strong testified that it was his

      wish to appeal his conviction and sentence and had he been advised of his

      appellate rights, he would have done so in a timely fashion. The State did not

      cross-examine Strong to elicit information about his independent awareness of

      his appellate rights, his education, or his familiarity with the legal system, and

      in fact, we are made aware of no opposition at all from the State with respect to

      Strong’s initial request for permission to file a belated notice of appeal. Upon

      receiving permission to file a belated notice of appeal, Strong’s file was lost


      Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015      Page 5 of 15
       through no fault of his own and his belated notice of appeal was not timely

       filed. Within just a few days of the missed deadline, however, he again sought

       permission to file a belated notice of appeal. By all accounts, Strong acted

       without fault and with personal diligence in pursuing permission to file a

       belated notice of appeal.


[9]    The State also alleges, in a footnote, that because Strong challenges his traffic

       infraction and fine, which is a civil penalty, he does not qualify as an “eligible

       defendant” under Post-Conviction Rule 2 for purposes of pursuing this appeal.

       An “eligible defendant” is one who, but for his failure to do so in a timely

       manner, would have the “right to challenge on direct appeal a conviction or

       sentence after a trial or plea of guilty . . . .” Ind. Post-Conviction Rule 2. The

       State argues, and the dissent agrees, that Strong is not challenging a conviction

       or sentence and that his appeal brought under the authority of Post-Conviction

       Rule 2 should be dismissed.1 We disagree.


[10]   Strong’s case as a whole was designated below as a criminal misdemeanor case,

       because in addition to the traffic infraction, Strong was alleged to have operated



       1
         The dissent also notes that Post-Conviction Rule 1 provides that the remedy of post-conviction relief is
       available to a person who has been convicted of a crime and does not believe Strong falls within the purview
       of the post-conviction rules because a traffic infraction is not a “crime.” Post-Conviction Rule 1 provides that
       “[a]ny person who has been convicted of, or sentenced for, a crime by a court of this state . . . may institute at
       any time a proceeding under this Rule to secure relief.” P-C.R. 1(1)(a). Rule 1 further states that “[t]his
       remedy is not a substitute for direct appeal from the conviction and/or sentence and all available steps
       including those under Rule PC 2 should be taken to perfect such an appeal.” P-C.R. 1(1)(b) (emphasis added).
       Although Strong seeks a post-conviction remedy, he has not filed a petition for post-conviction relief under
       Rule 1 and Post-Conviction Rule 1(1)(b) makes it clear that the remedies available under Rules 1 and 2 are
       separate. We therefore do not believe that whether a traffic infraction can be defined as a “crime” is
       determinative.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015                              Page 6 of 15
       a vehicle while intoxicated and/or with a blood alcohol content in excess of

       .08, both misdemeanors. Therefore, we cannot view the traffic infraction in

       isolation just because vacating that infraction and ensuing fine is the relief

       Strong requests. He requests that relief because the infraction is allegedly in

       violation of double jeopardy principles when considered in conjunction with his

       misdemeanor conviction.2


[11]   Moreover, even if we do view the infraction in isolation, the Rules of Appellate

       Procedure governing a direct appeal classify Strong’s case as a criminal appeal.

       Appellate Rule 2(G) defines “Criminal Appeals” as “those cases which were

       designated by the originating court as . . . Criminal Misdemeanor – CM; . . .

       Infraction – IF . . . .” Traffic infractions may be civil proceedings by statute,

       State v. Hurst, 688 N.E.2d 402, 405 (Ind. 1997), overruled on other grounds by Cook

       v. State, 810 N.E.2d 1064 (Ind. 2004), but they are nonetheless classified as

       criminal for purposes of appeal, cf. Cunningham v. State, 835 N.E.2d 1075, 1079

       n.4 (Ind. Ct. App. 2005) (noting that although traffic violations are not criminal

       proceedings, they remain “quasi-criminal” in nature in the sense that the

       procedures through which they are adjudicated “bear a likeness to those

       procedures employed in adjudicating criminal offenses”; for example, they are

       enforced by police, initiated and litigated by a prosecuting attorney, and




       2
        We also note that the trial court could not have improperly granted Strong’s motion to file a belated notice
       of appeal for this reason because the trial court did not know – and did not have to know – what issues
       Strong would be raising on appeal.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015                           Page 7 of 15
       violators are fined by the government), trans. denied. Strong should be entitled

       to the benefit of Post-Conviction Rule 2 as in other criminal appeals.


[12]   Finally, even if Strong’s appeal should be treated as a civil appeal despite the

       overall nature of the case and the designation given to it by the Appellate Rules

       such that Post-Conviction Rule 2 does not provide a viable avenue for filing a

       belated notice of appeal, In re Adoption of O.R. would offer him an opportunity

       to demonstrate “extraordinarily compelling reasons” justifying the filing of a

       belated notice of appeal. 16 N.E.3d 965, 971-72 (Ind. 2014). The trial court, in

       twice granting Strong’s motions to file a belated notice of appeal, must have

       found compelling reasons to do so, and we give substantial deference to its

       decision.


[13]   For the foregoing reasons, we hold the trial court’s decision to grant Strong

       permission to file a belated notice of appeal was not an abuse of discretion. We

       further reject the State’s invitation to dismiss and instead consider Strong’s

       appeal on its merits.


                                         II. Double Jeopardy
[14]   Strong contends there is a reasonable possibility that evidence of a single act—

       failure to stop at a stop sign—was used to prove that he committed a traffic

       infraction and also to establish endangerment supporting the elevation of the

       OWI offense from a Class C misdemeanor to a Class A misdemeanor.


[15]   Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall

       be put in jeopardy twice for the same offense.” “[T]wo or more offenses are the
       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015   Page 8 of 15
       ‘same offense’ in violation of Article 1, Section 14 of the Indiana Constitution

       if, with respect to either the statutory elements of the challenged crimes or the

       actual evidence used to convict, the essential elements of one challenged offense

       also establish the essential elements of another challenged offense.” Cross v.

       State, 15 N.E.3d 569, 571 (Ind. 2014) (quoting Richardson v. State, 717 N.E.2d

       32, 49 (Ind. 1999) (emphasis in original)). We review double jeopardy claims

       de novo. Calvert v. State, 14 N.E.3d 818, 822 (Ind. Ct. App. 2014).


[16]   Strong contends his OWI conviction and traffic infraction violate the actual

       evidence test. Under the actual evidence test,

               we examine the actual evidence presented at trial in order to determine
               whether each challenged offense was established by separate and
               distinct facts. To find a double jeopardy violation . . ., we must
               conclude that there is a reasonable possibility that the evidentiary facts
               used by the fact-finder to establish the essential elements of one offense
               may also have been used to establish the essential elements of a second
               challenged offense.
       Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (quotation omitted). The

       double jeopardy clause is not violated when the evidentiary facts establishing

       the essential elements of one offense also establish only one or even several, but

       not all, of the essential elements of a second offense. Id. Determining the

       existence of a “reasonable possibility” requires a “practical assessment of

       whether the [fact finder] may have latched on to exactly the same facts for both

       convictions.” Id. at 720 (alteration in original).




       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015          Page 9 of 15
[17]   Assuming that Strong was placed in jeopardy with respect to his traffic

       infraction such that it could be vacated on double jeopardy grounds,3 there is no

       need to do so here. To prove Strong violated Indiana Code section 9-21-8-32,

       the State had to establish by a preponderance of the evidence that Strong failed

       to make a proper stop at a stop sign.4 To convict Strong of OWI, the State had

       to prove beyond a reasonable doubt that Strong operated his vehicle while

       intoxicated in a manner that endangered any person. Ind. Code § 9-30-5-2(b).

       Some evidence beyond intoxication is required to prove the endangerment

       element. Outlaw v. State, 918 N.E.2d 379, 381-81 (Ind. Ct. App. 2009), adopted

       by 929 N.E.2d 196 (Ind. 2010). As noted above, Strong asserts that the

       evidence of endangerment is that he did not stop at the stop sign on Denwood

       Avenue before turning onto 38th Street and thus, the evidentiary facts




       3
         In State v. Hurst, our supreme court noted under federal double jeopardy analysis that “jeopardy” is not
       limited to criminal punishments: “nominally ‘non-criminal’ sanctions” can be a jeopardy if “the sanction is
       so punitive in effect that it can no longer be said to serve the remedial purposes of a civil sanction.” 688
       N.E.2d at 404. Hurst confronted the question of whether the imposition of a fine for committing the
       infraction of failure to yield the right-of-way precluded a subsequent prosecution for reckless homicide arising
       out of the same act. Finding that the legislature intended traffic infractions to be civil proceedings, that the
       enforcement of the failure to yield statute serves several remedial purposes, that the statute lacks a scienter
       requirement, and that the fine and court costs of approximately $60 was not grossly disproportionate, the
       court held “that defendant’s fine for violation of the failure to yield the right-of-way statute did not constitute
       a first jeopardy under the [federal] Double Jeopardy Clause.” Id. at 406. Because the defendant had not yet
       been criminally prosecuted and placed in jeopardy for his actions, the reckless homicide prosecution could
       proceed and the court did not address whether failure to yield the right-of-way and reckless homicide were
       the same offense. Id. Hurst was decided prior to Richardson announcing a separate double jeopardy test
       under the Indiana Constitution and no case has since discussed this issue under the state analysis.
       4
        The statute reads that “[a] person who drives a vehicle shall stop at an intersection where a stop sign is
       erected at one (1) or more entrances to a through highway that are not part of the through highway and
       proceed cautiously, yielding to vehicles that are not required to stop.”

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015                              Page 10 of 15
       establishing the essential elements of OWI established all of the essential

       elements of the infraction.


[18]   Officer Elliott did testify that Strong failed to stop at a stop sign before turning.

       However, he also testified that Strong made an improper lane change when he

       made a right hand turn into the lane closest to the center line rather than the

       lane closest to the curb, pulling into the path of Officer Elliott’s vehicle and

       requiring Officer Elliott to abruptly apply his brakes to avoid a collision. See

       Ind. Code § 9-21-8-21(a)(1) (“A person who drives a vehicle intending to turn at

       an intersection must do the following: [m]ake both the approach for a right

       turn and a right turn as close as practical to the right-hand curb or edge of the

       roadway.”). This evidence supports the endangerment element of Strong’s

       Class A misdemeanor OWI conviction and is independent of Strong’s failure to

       stop at the stop sign. Thus, Strong’s double jeopardy argument fails because the

       actual evidence is not the same.



                                                 Conclusion
[19]   The trial court did not abuse its discretion in granting Strong’s motion(s) to file

       a belated notice of appeal and Strong properly proceeded under Post-

       Conviction Rule 2. However, Strong’s OWI conviction and traffic infraction

       do not constitute the same offense for Indiana double jeopardy purposes, and

       Strong is therefore not entitled to the relief he seeks. His OWI conviction and

       sentence and his traffic infraction and fine are affirmed.



       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015     Page 11 of 15
[20]   Affirmed.


       Brown, J., concurs.


       Bailey, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015   Page 12 of 15
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Terrence Strong,                                           April 9, 2015

       Appellant-Defendant,                                       Court of Appeals Case No.
                                                                  49A02-1406-CR-412
               v.
                                                                  Appeal from the Marion Superior
       State of Indiana,                                          Court
                                                                  The Honorable Kimberly J. Brown,
       Appellee-Plaintiff,
                                                                  Judge
                                                                  Cause. No. 49F07-1108-CM-60947




       Bailey, Judge, dissenting.

[21]   I agree with the State that the Indiana Post-Conviction rules do not entitle

       Strong to challenge a nominal fine on belated appeal. See Reed v. State, 856

       N.E.2d 1189, 1193 (Ind. 2006) (observing that post-conviction proceedings do

       not afford a petitioner a “super-appeal” and that the post-conviction rules

       contemplate a narrow remedy for subsequent collateral challenges to

       convictions). In my view, dismissal is appropriate. I therefore respectfully

       dissent.


[22]   Indiana Post-Conviction Rule 1(1)(a) specifies to whom the remedy of post-

       conviction relief is available, that is: “Any person who has been convicted of,

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015                Page 13 of 15
       or sentenced for, a crime by a court of this state [who makes certain specified

       claims].” (emphasis added.) Post-Conviction Rule 2, under which Strong

       sought relief, defines an eligible defendant as one who, but for his or her failure

       to do so timely, would have the right to challenge on direct appeal a conviction or

       sentence after a trial or plea of guilty. (emphasis added.) Our post-conviction rules

       afford relief in limited circumstances to those convicted of and punished for

       crimes.


[23]   “[T]raffic infractions are civil, rather than criminal, in nature and the State must

       prove the commission of the infraction by only a preponderance of the

       evidence.” Rosenbaum v. State, 930 N.E.2d 72, 74 (Ind. Ct. App. 2010), trans.

       denied.5 Strong was not convicted of, or punished for, a crime, so as to bring

       him within the purview of our post-conviction rules. P-C.R. 1. Dismissal is the

       appropriate remedy. See Witt v. State, 867 N.E.2d 1279, 1282 (Ind. 2007)

       (finding dismissal to be the appropriate remedy where a litigant failed to satisfy

       the requirements of Post-Conviction Rule 2).


[24]   As the majority has observed, the trial court was unaware of the issue upon

       which the post-conviction petition would proceed. But when presented to this




       5
         I acknowledge that Appellate Rule 2(G) defines criminal appeals to include infractions. The provision
       includes limiting language: “This definition is for ease of reference and does not change the substantive
       rights of the parties.” Id. Moreover, a perceived conflict between rules would be resolved with the more
       specific rule governing over the more general. See DeLage Landen Fin. Serv., Inc. v. Community Mental Health
       Center, Inc., 965 N.E.2d 693, 698 (Ind. Ct. App. 2012) (observing that “when two rules cover the same subject
       matter and one does so generally where the other does so specifically, the more specific rule prevails.”)
       Strong’s appeal, which might otherwise have been brought as a direct appeal of a civil infraction, is – due to
       its procedural posture – one which specifically invokes the post-conviction rules.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015                         Page 14 of 15
       Court, it is clear that the only issue upon which the petitioner can be afforded

       relief involves a civil infraction. Broadening the post-conviction rules by

       judicial fiat will foster belated collateral challenges to any infraction, undermine

       the principle of finality, and increase strain upon limited judicial resources.


[25]   Accordingly, I dissent.




       Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015   Page 15 of 15
