FOR PUBLICATION

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JOHN D. FIEREK                                GREGORY F. ZOELLER
Voyles, Zahn, Paul, Hogan & Merriman          Attorney General of Indiana
Indianapolis, Indiana
                                              AARON J. SPOLARICH
                                              Deputy Attorney General
                                              Indianapolis, Indiana
                                                                             FILED
                                                                        Feb 01 2013, 9:24 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                  CLERK
                                                                              of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




TRAVIS KOONTZ,                                )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 29A05-1202-CR-77
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE HAMILTON SUPERIOR COURT
                           The Honorable Gail Bardach, Judge
                            Cause No. 29D06-1101-CM-669




                                   February 1, 2013



                   OPINION ON REHEARING - FOR PUBLICATION



ROBB, Chief Judge
       In Koontz v. State, 975 N.E.2d 846 (Ind. Ct. App. 2012), we held that Travis

Koontz waived any claim of an illegal sentence by entering into a plea agreement which

reduced his penal exposure. Id. at 849-50 (Baker, J., dissenting). Both Koontz and the

State of Indiana have filed petitions for rehearing. We grant the petitions for the purpose

of correcting a misstatement of the law, but reaffirm our original disposition.

       Koontz was charged with driving while suspended, a Class A misdemeanor, false

informing, a Class B misdemeanor, operating a vehicle while intoxicated, a Class C

misdemeanor, and operating a vehicle with an alcohol concentration equivalent (“ACE”)

of .08 or more, a Class C misdemeanor. He and the State entered into a plea agreement

by which Koontz pleaded guilty to driving while suspended and operating with an ACE

of .08 or more, and the State dismissed the remaining charges. The trial court accepted

the plea agreement and imposed the agreed upon sentence: 365 days in jail with eighteen

days executed and 365 days of probation for the Class A misdemeanor, to be served

concurrently with sixty days in jail with eighteen days executed and 365 days of

probation for the Class B misdemeanor. Upon violating his probation several months

later, Koontz filed a motion to correct erroneous sentence alleging the sentence was

erroneous on its face because the combined term of imprisonment and period of

probation exceeded a statutory one year limitation. In discussing whether Koontz had

benefitted from his plea agreement such that he should be held to the bargain, illegal

sentence notwithstanding, we noted several things: all of the charges against him were

misdemeanors; two of the four charges against him were dismissed, including the second-

most serious of the charges; and the trial court could have imprisoned him up to one year

                                             2
had it had discretion in sentencing, but pursuant to the agreement, he was to serve just

eighteen days of a one-year sentence. We also stated:

       [B]eing convicted of the per se offense rather than operating while
       intoxicated reduces Koontz’s exposure if he were to be arrested again for
       operating while intoxicated. See Ind. Code § 9-30-5-3 (stating that a person
       violating the operating while intoxicated or operating with an ACE of .08
       or more commits a Class D felony if the person has a previous conviction
       of operating while intoxicated within five years).

Id. at 850 (emphasis in original).

       As both parties have pointed out, this is a misstatement of the law. Indiana Code

section 9-30-5-2 defines “operating a vehicle while intoxicated” separately from the per

se offense defined in section 9-30-5-1. However, “previous conviction of operating while

intoxicated” is also a term defined by the Indiana Code, and it includes offenses under

sections 9-30-5-1 through -9. Ind. Code § 9-13-2-130. Therefore, even a conviction of

the per se offense would subject Koontz to a Class D felony charge if he were to commit

another operating while intoxicated offense within five years of this conviction.

Accordingly, we grant the parties’ petitions for rehearing and strike the above language

from our original opinion.

       Even without this consideration, however, the other factors we mentioned remain

viable and we continue to believe that, given the circumstances in which Koontz was

charged with all misdemeanors, two of the four misdemeanors were dismissed, and

Koontz agreed to the sentence as part of his plea agreement, he has waived any illegality

in the sentence. Accordingly, we again affirm the trial court’s denial of his motion to

correct erroneous sentence.


                                            3
BRADFORD, J., concurs.

BAKER, J., would reverse as previously stated in his dissenting opinion.




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