MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Feb 26 2019, 8:41 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman                                 Curtis T. Hill, Jr.
Of Counsel, Austin & Jones, P.C.                         Attorney General of Indiana
Indianapolis, Indiana                                    Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ravi Jani,                                               February 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2125
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Anne Flannelly,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G04-1710-F5-39825



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019               Page 1 of 13
[1]   Ravi Jani appeals his conviction for operating a motor vehicle after forfeiture of

      license for life as a level 5 felony. We affirm.


                                      Facts and Procedural History

[2]   On January 17, 2012, Jani and the State filed a plea agreement under cause

      number 49-F15-1109-FD-68486 (“Cause No. 86”) in which Jani agreed to plead

      guilty to Count 1, operating a vehicle while suspended as an habitual violator as

      a class D felony under Ind. Code § 9-30-10-16, and Count 9, operating a vehicle

      with a BAC greater than .08 as a class D felony. The plea agreement included a

      suspension of his driver’s license of 365 days for Count 9 and for a lifetime for

      Count 1. The court sentenced Jani on January 17, 2012.


      On March 26, 2014, Jani and the State filed a plea agreement in cause number

      49G06-1401-FC-2454 (“Cause No. 54”) in which Jani agreed to plead guilty to

      Count I, operating a motor vehicle after license forfeited for life as a class C

      felony under Ind. Code § 9-30-10-17; Count II, resisting law enforcement as a

      class D felony; and “Count III: Operating a Motor Vehicle while

      intoxicated/MA and Count III Parts I and II[]: Operating a Motor Vehicle

      while Intoxicated/FD.” State’s Exhibit 8. That same day, the court signed a

      document titled Guilty Plea Proceedings in which it accepted the plea

      agreement and found Jani guilty as charged.


[3]   On October 13, 2017, Jani was operating a vehicle in Marion County when he

      struck the rear of a white Ford driven by Jarrid Redden. After the accident,

      Jani continued to drive, left the area, and drove to a parking lot in Hendricks


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 2 of 13
      County. Hendricks County Sheriff’s Deputy Kyle Noel encountered Jani in the

      parking lot attempting to start his vehicle, which had damage to the grill and

      front end. Jani admitted to driving the vehicle to the parking lot from Marion

      County. IMPD Officer Brown arrived at the scene while investigating a

      possible hit and run on Kentucky Avenue. Jani refused to submit to a chemical

      test, and Officer Brown applied for and was granted a search warrant for Jani’s

      blood. Officer Brown transported Jani to Eskenazi Hospital where blood was

      drawn and later testing yielded a result of blood ethyl alcohol concentration in

      the range of .189 to .208.


[4]   On October 16, 2017, the State charged Jani with: Count I, operating a motor

      vehicle after forfeiture of license for life as a level 5 felony; Count II, operating a

      vehicle while intoxicated endangering a person as a class A misdemeanor;

      Count III, operating a vehicle with an ACE of .15 or more as a class A

      misdemeanor; and Count IV, leaving the scene of an accident as a class B

      misdemeanor. The State also alleged that Jani had operated a vehicle while

      intoxicated as a level 6 felony as part II of Count II and that he had operated a

      vehicle while intoxicated as a level 6 felony as part II of Count III.


[5]   On July 6, 2018, the court held a bench trial. Jani’s counsel asserted that Ind.

      Code § 9-30-10-17(a)(1) provides that if someone is driving a motor vehicle after

      having forfeited their license under Ind. Code § 9-30-10-16, then that person is

      guilty of a level 5 felony, that Ind. Code § 9-30-10-16 was amended in 2015 and

      it no longer provides for a lifetime suspension, and that Jani could not be

      convicted under Ind. Code § 9-30-10-17 because the event that “triggers the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 3 of 13
      Level 5 is no longer provided for in Indiana code 9-30-10-16.” Transcript

      Volume II at 6.


[6]   Without objection, the State introduced and the court admitted the Officer’s

      Arrest Report related to Cause No. 86, which indicated that the offense date

      was September 25, 2011; the plea agreement and abstract of judgment related to

      Cause No. 86; the Officer’s Arrest Report related to Cause No. 54, which

      indicated that the arrest date was January 23, 2014; the plea agreement, abstract

      of judgment, and sentencing order for Cause No. 54; and a printed copy of

      Jani’s BMV record as of June 25, 2018.


[7]   Without objection, the State introduced and the court also admitted the original

      SR16 and the corrected SR16 as State’s Exhibit Nos. 5 and 6. The document

      admitted as State’s Exhibit No. 5 was titled “Manual Certification of Indiana

      Abstract of Court Record State Form 53124 (R4 / 1-10) / SR16,” was dated

      January 17, 2012, and listed Jani’s offense as operating a vehicle while

      suspended as an habitual violator as a class D felony and Ind. Code § 9-30-10-

      16 as the relevant section under Cause No. 86. State’s Exhibit No. 5

      (capitalization omitted). The document also listed “Suspension of Driving

      Privileges: 365 Days.” Id. The document admitted as State’s Exhibit No. 6 is

      titled “Certification of Indiana Abstract of Court Record State Form 53124 (R5

      / 2-16) / SR16,” was dated January 17, 2012, referenced Cause No. 86, and

      stated: “Suspension of Driving Privileges for: 99999 Days” and “Start On:

      01/17/2012.” State’s Exhibit 6 (capitalization omitted). The prosecutor

      asserted that the original SR16 included a mistake. Specifically, he argued: “It

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 4 of 13
       just simply did the operating a vehicle while suspended as an habitual violator,

       but then put the suspension in for the 365 days for the OVWI. That was later

       then corrected very recently, Judge, not more than a month ago, to the actual

       HTV suspended for life of 99999 days.” Transcript Volume II at 13.


[8]    Jani introduced and the court admitted a transcript dated January 12, 2016,

       from cause number 49G24-1509-F6-31515 (“Cause No. 15”). The transcript for

       Cause No. 15 indicates that Jani pled guilty to being a habitual traffic violator

       as a level 6 felony, the court stated that the plea agreement indicated that the

       suspension of driving privileges was open for argument, Jani stated that he

       would not drink at all and had learned his lesson, and the court stated that it did

       not feel a lifetime suspension at that time was warranted and entered a twenty-

       year suspension.


[9]    The prosecutor argued that, even if the most recent suspension somehow

       impacts the fact that Jani had a reasonable belief that his license was not

       suspended, “the General Assembly concluded that by the time [Ind. Code § 9-

       30-10-17] comes into play, proof of knowledge is not necessary to establish

       culpability.” Id. at 15. He also stated that “the fact that [Jani] knew his

       suspension was in effect and drove while license was suspended for life would

       be enough even if there was a knowledge requirement . . . .” Id. at 17.


[10]   Defense counsel argued that Jani’s most recent suspension of twenty years was

       not a lifetime suspension, that it controls, and that he was not driving on a

       lifetime forfeiture at the time of the incident. He asserted that Ind. Code § 9-30-


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 5 of 13
       10-16 no longer provides for a lifetime suspension and “[t]hat lifetime

       suspension provided by 16 is the event that triggers the Level 5 felony.” Id. at

       20. He also argued that the legislature omitted a savings clause from the

       amended version of Ind. Code § 9-30-10-16 and that Jani could not be convicted

       of a level 5 felony under the doctrine of amelioration. He requested that the

       court find Jani “guilty of nothing more than a Level 6, operating after having

       forfeited one’s license under Indiana code 9-30-10-16.” Id. at 22.


[11]   The court found Jani guilty as charged and found that Count III merged into

       Count II. It sentenced Jani to four years for Count I, two years for Count II,

       and 180 days for Count IV, and ordered the sentences to be served concurrently

       with each other and consecutive to a sentence in another cause.


                                                    Discussion

[12]   Jani argues that his conviction under Ind. Code § 9-30-10-17 must be reversed

       because, “[w]hile he did admit to operating a motor vehicle for driving while on

       suspension of his license for 20 years, he was not driving following a lifetime

       suspension under I.C. § 9-30-10-6 because the trial court had not yet placed

       [him] on lifetime forfeiture.” Appellant’s Brief at 8. He argues that, “[w]hile

       there was a judgment of lifetime forfeiture of driving privileges in 2012, the

       lifetime forfeiture was not put into operation until 2018.” Id. at 9. He states:

       “In the present case, the trial court’s docket indicates that the trial court

       requested that the BMV place [him] on a lifetime forfeiture of driving privileges

       on June 22, 2018, nearly eight months after he was charged with driving while

       his privileges were forfeited.” Id. It appears that Jani is referring to Cause No.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 6 of 13
       86 as the docket for that case includes entries dated June 22, 2018, which state

       in part: “Ticket Substitute SR16 to be Sent to BMV” and “Court Requests

       Suspension of Driver for OWI.” Cause No. 86 Docket.


[13]   Jani also argues that when he pled guilty to Ind. Code § 9-30-10-16 in 2012, the

       2012 version of Ind. Code § 9-30-10-16 provided that in addition to the criminal

       penalty, the defendant would forfeit the privilege of operating a motor vehicle

       for life. He contends that the lifetime forfeiture provision was removed by Pub.

       L. No. 188-2015, § 17, effective July 1, 2015, and that “[t]hus lifetime

       suspension is no longer mandated.” Id. He asserts that the doctrine of

       amelioration applies and that “[a]s there is no provision for lifetime forfeiture

       contained in I.C. § 9-30-10-16, one of the elements for conviction under I.C. §

       9-30-10-17, the more lenient interpretation applies, and [his] conviction should

       be reversed.” Id. at 12.


[14]   The State argues that it was not obligated to prove that Jani knew of the lifetime

       forfeiture because knowledge of lifetime forfeiture is not an element of Ind.

       Code § 9-30-10-17 and there can be no question that Jani’s driving privileges

       were forfeited at the time he committed the instant offense. It also contends

       that the doctrine of amelioration is inapplicable, and that the 2015 amendment

       to Ind. Code § 9-30-10-16 merely left lifetime suspension to the trial court’s

       discretion to be determined on a case-by-case basis.


[15]   Between July 1, 2001, and June 30, 2014, Ind. Code § 9-30-10-16 provided:


               (a) A person who operates a motor vehicle:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 7 of 13
                 (1) while the person’s driving privileges are validly
                 suspended under this chapter or IC 9-12-2 (repealed July 1,
                 1991) and the person knows that the person’s driving
                 privileges are suspended; or

                 (2) in violation of restrictions imposed under this chapter
                 or IC 9-12-2 (repealed July 1, 1991) and who knows of the
                 existence of the restrictions;

        commits a Class D felony.

        (b) Service by the bureau of notice of the suspension or restriction
        of a person’s driving privileges under subsection (a)(1) or (a)(2):

                 (1) in compliance with section 5 of this chapter; and

                 (2) by first class mail to the person at the last address
                 shown for the person in the bureau’s records;

        establishes a rebuttable presumption that the person knows that
        the person’s driving privileges are suspended or restricted.

        (c) In addition to any criminal penalty, a person who is convicted
        of a felony under subsection (a) forfeits the privilege of operating
        a motor vehicle for life. However, if judgment for conviction of a
        Class A misdemeanor is entered for an offense under subsection
        (a), the court may order a period of suspension of the convicted
        person’s driving privileges that is in addition to any suspension of
        driving privileges already imposed upon the person.


This version of the statute was in effect when Jani committed his offense on

September 25, 2011, under Cause No. 86 and when Jani was arrested on

January 23, 2014, under Cause No. 54. Effective July 1, 2015, Ind. Code § 9-

30-10-16 was amended to change the offense from a class D felony to a level 6

felony and to delete subsection (c).


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 8 of 13
[16]   Ind. Code § 9-30-10-17 provides in part:


                (a) A person who:

                         (1) operates a motor vehicle after the person’s driving
                         privileges are forfeited for life under section 16 of this
                         chapter, IC 9-4-13-14 (repealed April 1, 1984), or IC 9-12-
                         3-1 (repealed July 1, 1991);

                                                         *****

                commits a Level 5 felony.[ 1]

[17]   In Count I, the State cited Ind. Code § 9-30-10-17 and alleged that, “[o]n or

       about October 13, 2017, [Jani] did operate a motor vehicle in the 5700 block of

       S. Kentucky Ave. after his driving privileges were forfeited for life pursuant to

       I.C. 9-30-10-16.” Appellant’s Appendix Volume II at 20.


[18]   The Indiana Supreme Court has held:


                Although Indiana Code section 9-30-10-16 contains a knowledge
                requirement, the plain text of section 17 makes absolutely no
                reference to a knowledge requirement. And section 17’s
                reference to section 16 does not incorporate the knowledge
                requirement of section 16 into section 17. That is, section 16 is
                not a lesser included offense of section 17. Had the General
                Assembly intended section 17 to have a knowledge requirement,
                it would have done so, like it did for section 16. Moreover, it is
                reasonable to conclude that the General Assembly intended




       1
         Between July 1, 1993 and June 30, 2013, Ind. Code § 9-30-10-17 provided: “A person who operates a motor
       vehicle after the person’s driving privileges are forfeited for life under section 16 of this chapter, IC 9-4-13-14
       (repealed April 1, 1984), or IC 9-12-3-1 (repealed July 1, 1991) commits a Class C felony.”



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019                     Page 9 of 13
               section 17 to be a strict liability offense. The only persons likely
               to be subject to section 17 are those who have had numerous
               severe traffic violations. They are recidivists who have already
               lost their privileges for life. We think the General Assembly
               concluded that, by the time section 17 comes into play, proof of
               knowledge is not necessary to establish culpability. We therefore
               believe that it would subvert legislative intent for us to graft a
               knowledge requirement onto the statute.


       Brock v. State, 955 N.E.2d 195, 205 (Ind. 2011), cert. denied, 566 U.S. 909, 132 S.

       Ct. 1801 (2012).


[19]   To the extent Jani asserts that his lifetime forfeiture of driving privileges had not

       yet begun as of the date of his arrest on October 13, 2017, we addressed a

       similar argument in Pillow v. State, 986 N.E.2d 343 (Ind. Ct. App. 2013). In

       Pillow, we held:


               Nor was Pillow’s conviction improper because at the time of his
               offense the BMV had not received notice of his 2010 conviction.
               Pursuant to Ind. Code § 9-30-10-16(c), a person who is convicted
               of a felony under that section “forfeits the privilege of operating a
               motor vehicle for life.” Pillow’s lifetime suspension was imposed
               by statute, and we decline his invitation to hold the BMV’s
               inaction nullifies that statutory requirement. See State v. Vankirk,
               955 N.E.2d 765, 769 (Ind. Ct. App. 2011) (BMV record does not
               control status of driving privileges when that record is
               inconsistent with mandatory consequences of Ind. Code § 9-30-
               10-16(c). Trial court’s earlier modification of conviction from
               Class D felony to Class A misdemeanor “removes the lifetime
               forfeiture of a defendant’s driving privileges,” regardless whether
               BMV record acknowledges that modification.), trans. denied.


       986 N.E.2d at 345.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 10 of 13
[20]   Jani acknowledges that he “was convicted of violating I.C. § 9-30-10-16 in 2012

       and judgment was entered forfeiting his driving privileges for life.” Appellant’s

       Brief at 7. The record reveals that the abstract of judgment for Cause No. 86

       dated January 17, 2012, indicates that Jani was convicted under Ind. Code § 9-

       30-10-16 as a felony. Thus, under Ind. Code § 9-30-10-16(c), which was in

       effect at the time, Jani forfeited the privilege of operating a motor vehicle for

       life. Further, the plea agreement under Cause No. 86 provided that the terms

       and conditions of the sentence included a suspension of his driver’s license for a

       lifetime for Count 1. The chronological case summary for Cause No. 86

       includes an entry dated January 17, 2012, which states in part: “Defendant’s

       drivers [sic] license suspended for 99999 days.” We also note that Jani later

       pled guilty under Cause No. 54 to operating a motor vehicle after license

       forfeited for life as a class C felony under Ind. Code § 9-30-10-17, the trial court

       accepted the plea agreement and found Jani guilty as charged, and the abstract

       of judgment for Cause No. 54 dated April 16, 2014, indicates that Jani was

       found guilty of operating a vehicle after license forfeited for life as a class C

       felony. Under these circumstances, we cannot say that Jani was improperly

       convicted of operating a motor vehicle after forfeiture of license for life as a

       level 5 felony under Ind. Code § 9-30-10-17.


[21]   To the extent Jani raises the doctrine of amelioration, we note that, when

       interpreting a statute, our primary goal is to fulfill the legislature’s intent. Day v.

       State, 57 N.E.3d 809, 812 (Ind. 2016). “[T]he ‘best evidence’ of that intent is

       the statute’s language.” Id. (quoting Adams v. State, 960 N.E.2d 793, 798 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 11 of 13
       2012)). “If that language is clear and unambiguous, we simply apply its plain

       and ordinary meaning, heeding both what it ‘does say’ and what it ‘does not

       say.’” Id. (quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind. 2003)).


[22]   The doctrine of amelioration is an exception to the general rule that the

       sentence in effect at the time a crime is committed is the proper

       penalty. Cottingham v. State, 971 N.E.2d 82, 85 (Ind. 2012) (citing Richards v.

       State, 681 N.E.2d 208, 213 (Ind. 1997)). The doctrine entitles defendants who

       are sentenced after the effective date of a statute providing for a more lenient

       sentence to be sentenced pursuant to that statute, as opposed to the statute in

       effect at the time the crime was committed. Id. Generally, “in order to

       determine whether the doctrine of amelioration is applicable we must establish:

       (1) whether [the defendant] was sentenced after the effective date of the statute;

       (2) whether the amended statute is more lenient than the previous version, that

       is, whether the amendment is truly ameliorative; and (3) the legislature’s

       intent.” Turner v. State, 870 N.E.2d 1083, 1086 (Ind. Ct. App. 2007).


[23]   The legislature removed subsection (c) from Ind. Code § 9-30-10-16 effective

       July 1, 2015. By that time, Jani had already pled guilty under Ind. Code § 9-30-

       10-16 as a felony under Cause No. 86 in 2012. We cannot say that Jani was

       sentenced for his conviction under Ind. Code § 9-30-10-16 after the effective

       date of the revised statute which does not contain subsection (c).


[24]   Further, to the extent that Ind. Code § 9-30-10-17 references Ind. Code § 9-30-

       10-16, we note that while subsection (c) was removed from Ind. Code § 9-30-10-


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 12 of 13
       16 effective July 1, 2015, the Legislature did not amend Ind. Code § 9-30-10-17

       in July 2015. The relevant portion of Ind. Code § 9-30-10-17 provides that “[a]

       person who . . . operates a motor vehicle after the person’s driving privileges are

       forfeited for life under section 16 of this chapter, IC 9-4-13-14 (repealed April 1,

       1984), or IC 9-12-3-1 (repealed July 1, 1991) . . . commits a Level 5 felony.”

       Based upon the plain language, we cannot say that the doctrine of amelioration

       applies in this case.


[25]   For the foregoing reasons, we affirm Jani’s conviction for operating a motor

       vehicle after forfeiture of license for life as a level 5 felony.


[26]   Affirmed.


       Bailey, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2125 | February 26, 2019   Page 13 of 13
