Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
APPELLANT PRO SE:
ATTORNEYS FOR APPELLEE:
DAVID I. FRANKLIN
Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DAVID I. FRANKLIN,
STATE OF INDIANA,
APPEAL FROM THE BROWN CIRCUIT COURT
The Honorable Judith A. Stewart, Judge
Cause No. 07C01-0401-FC-33
May 10, 2007
MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION
David I. Franklin, pro se, petitions for rehearing. Franklin pled guilty to
various traffic offenses and received a ten-year sentence.
He filed a post-
conviction relief (“PCR”) petition, arguing his convictions violated the double
jeopardy protection afforded him by the Indiana State Constitution. The postconviction court denied his petition and we affirmed. We held Franklin had
waived his right to challenge his convictions on double jeopardy grounds because
he pled guilty.
We accordingly did not address his double jeopardy claim.
Franklin v. State, No. 07A05-0607-PC-405 (Ind. Ct. App. January 17, 2007).
We grant Franklin’s petition for rehearing but affirm our decision.
DISCUSSION AND DECISION
In August 1998, September 2001, and February 2002, Franklin was
convicted of operating a vehicle while intoxicated (OVWI). In March 2002, his
driving privileges were suspended for ten years because he was an habitual traffic
violator (HTV). In January 2004, Franklin crashed the car he was driving and his
six-year-old passenger was seriously injured.
At the time of the accident,
Franklin’s blood alcohol content was 0.26. Franklin was charged with various
offenses. He eventually pled guilty to operating a motor vehicle while suspended
as a Class D felony, 1 OVWI causing serious bodily injury as a Class C felony, 2
Ind. Code § 9-30-10-16(a)(1).
Ind. Code § 9-30-5-4(a)(3). Driving while intoxicated is a Class D felony. It is a Class C felony
if the defendant has a prior operating while intoxicated conviction within five years.
and being an habitual substance offender (HSO). 3 The predicate offenses for the
HSO enhancement were his OVWI convictions in 1998, 2001 and 2002. 4 The trial
court sentenced Franklin to an aggregate sentence of ten years, the maximum
allowed by the plea agreement. Franklin filed a PCR petition alleging he had been
subjected to double jeopardy in violation of the Indiana Constitution. The postconviction court determined Franklin had waived his right to challenge his
conviction on double jeopardy grounds by pleading guilty. On appeal, we agreed
Franklin had waived his right and, accordingly, affirmed the post-conviction court
without addressing his double jeopardy argument. Notwithstanding Franklin’s
waiver, we do so now.
Franklin’s convictions do not violate the double jeopardy protections found
in Article I, Section 14 of the Indiana Constitution. 5 Our Indiana Supreme Court
[T]wo or more offenses are the “same offense” in violation of
Article I, 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. Both of these considerations, the statutory elements test and
the actual evidence test, are components of the double jeopardy
“same offense” analysis under the Indiana Constitution.
Ind. Code § 35-50-2-10.
At least three substance offense convictions are involved in an habitual substance offender
adjudication—two “prior unrelated substance offense convictions” and a third conviction to
which the habitual substance offender finding is “attached.” See Ind. Code § 35-50-2-10(b). In
this context, the third, or current, offense is referred to as the “underlying” offense while the prior
unrelated substance offense convictions are known as “predicate” or “prior” offenses.
Article I, Section 14 of the Indiana Constitution provides: “No person shall be put in jeopardy
twice for the same offense.”
Richardson v. State, 717 N.E.2d 32, 49-50 (Ind. 1999). The actual evidence test
requires an examination of the “actual evidence presented at trial . . . to determine
whether each challenged offense was established by separate and distinct facts.”
Id. at 53.
A “defendant must demonstrate 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.” Id.
Franklin argues the predicate offenses for the HSO enhancement are the
same offenses that led to the suspension of his license, namely his 1998, 2001, and
2002 OVWI convictions. Therefore, he contends, the actual evidence supporting
the HSO enhancement and the driving while suspended conviction is the same.
Ind. Code § 9-30-5-4(a)(3) provides: “A person who causes serious bodily
injury to another person when operating a motor vehicle . . . while intoxicated . . .
commits . . . a Class C felony if the person has a previous conviction of operating
while intoxicated within the five (5) years preceding the commission of the
offense.” At the plea hearing, Franklin admitted he was operating a motor vehicle
on January 21, 2004, and “as a result of [his] operation of that motor vehicle [there
was] an accident in which a young child was injurred [sic].” (App at 68.) The
child “received injuries that, um, by their nature were life threatening injuries.”
(Id. at 70.) Franklin admitted he had “been drinking,” he “had lost the normal use
and control of [his] faculties and impaired [his] driving,” and he was “intoxicated
when [he was] driving.” (Id. at 69.) He acknowledged he had been convicted of
OVWI in 2002, which conviction was within five years of the accident.
In addition to the underlying substance offense, Ind. Code § 35-50-2-10(b)
requires proof beyond a reasonable doubt the person “accumulated two (2) prior
unrelated substance offense convictions” before the person can be adjudicated an
habitual substance offender. Referring to his 1998 and 2001 convictions, Franklin
admitted he had been “convicted twice even before that [2002 conviction] of
Operating While Intoxicated.” (App. at 70.)
Ind. Code § 9-30-10-16(a)(1) provides: “A person who operates a motor
vehicle . . . while the person’s driving privileges are validly suspended under this
chapter . . . and the person knows that the person’s driving privileges are
suspended . . . commits a Class D felony.” At the plea hearing, Franklin admitted
he was operating a motor vehicle on January 21, 2004, at that time his license had
been suspended, and he knew his license had been suspended. His license had
been suspended “because [the Bureau of Motor Vehicles] had determined [he was]
a habitual traffic violator.” (App. at 68.)
The “essence of the HTV offense [operating a vehicle after being adjudged
an habitual traffic offender] was the act of driving after being so determined. The
focus is not on the reliability of the underlying determination, but on the mere fact
of the determination.” State v. Hammond, 761 N.E.2d 812, 815 (Ind. 2002). In
other words, the circumstances giving rise to the suspension are not essential
elements of the offense of driving while suspended. Franklin’s conviction of
driving while suspended was fully established by the admission he knew his
license was suspended under Ind. Code ch. 9-30-10 at the time he was driving.
Further evidence regarding the basis of the suspension was surplusage.
Consequently, Franklin has failed to demonstrate a reasonable possibility
the evidence used to establish the essential elements of the HSO adjudication were
also used to establish the essential elements of driving while suspended.
By pleading guilty, Franklin waived the right to challenge his convictions
on double jeopardy grounds. Waiver notwithstanding, he was not subjected to
Accordingly, we grant rehearing, affirm the post-conviction court, and
affirm our previous opinion in all respects.
NAJAM, J., and MATHIAS, J., concur.