Eugene K. Stephic v. State of Indiana (NFP)

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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 case. ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: BRIDGETTE F. GREENE Elkhart, Indiana STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana IN THE COURT OF APPEALS OF INDIANA EUGENE K. STEPHIC, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) ) No. 20A03-0603-PC-139 APPEAL FROM THE ELKHART SUPERIOR COURT The Honorable James W. Rieckhoff, Judge Cause No. 20D05-0505-PC-2 and 20D05-0505-PC-3 November 9, 2006 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge STATEMENT OF THE CASE Eugene K. Stephic appeals from the denial of his petition for post-conviction relief. We affirm. ISSUE Whether the post-conviction court erred in denying Stephic s petition for post-conviction relief. FACTS On May 18, 1996, the Indiana Bureau of Motor Vehicles ( BMV ) suspended Stephic s motor-vehicle license for a five-year period after determining him to be an habitual traffic violator ( HTV ) pursuant to Indiana Code section 9-30-10-4(c). Stephic received notice of the suspension. Stephic operated a motor vehicle on July 16, 1996. On September 18, 1996, Stephic pled guilty to operating a motor vehicle while privileges were suspended, a class D felony. On October 21, 1996, the trial court entered a judgment of conviction and sentenced Stephic. Pursuant to Indiana Code section 9-30-10-16, Stephic s driving privileges were forfeited for life. Stephic again operated a motor vehicle on April 6, 1998. On October 12, 1998, Stephic pled guilty to operating a motor vehicle while privileges were suspended, a class D felony. The trial court entered a judgment of conviction and sentenced Stephic on February 8, 1999. 2 On January 26, 2005, Stephic filed a petition for judicial review of the HTV determination. Stephic argued that he did not have the requisite number of trafficviolation judgments under Indiana Code section 9-30-10-4(c), which provides as follows: A person who has accumulated at least ten (10) judgments within a ten (10) year period for any traffic violation, except a parking or an equipment violation, of the type required to be reported to the bureau, singularly or in combination, not arising out of the same incident, and with at least one (1) violation occurring after March 31, 1984, is a habitual violator. However, at least one (1) of the judgments must be for a violation enumerated in subsection (a) or (b). Stephic asserted that the BMV enumerated eleven (11) violations but erroneously listed two (2) offenses which occurred March 17, 1994 which led to a conviction on April 12, 1994. (App. 9). On March 7, 2005, the trial court entered its judgment and order on Stephic s petition for judicial review. Determining that Indiana Code section 9-30-10-4(c) requires a total of eleven judgments for traffic violations and that Stephic only had ten, the trial court found that the BMV made a material error in it s [sic] determination that [Stephic] was a habitual violator and ordered the BMV to expunge from their records said finding that [Stephic] is a habitual violator, and rescind the five (5) year license suspension previously entered by the [BMV]. (App. 16). On May 9, 2005, Stephic filed petitions for post-conviction relief, seeking to set aside his October 21, 1996 and October 12, 1998 convictions for operating a motor vehicle while privileges were suspended. On October 26, 2005, the post-conviction court held a hearing on both petitions. On February 23, 2006, the post-conviction court entered its order, concluding: 3 A. Stephic had the burden to establish his grounds for post-conviction relief by a preponderance of the evidence. B. The essence of an HTV offense is the act of driving after being so determined. The focus is not on the reliability or non-reliability of the underlying determination, but on the mere fact of the determination. C. The fact that an offense underlying an HTV determination is later challenged or set aside does not mean that the HTV adjudication is invalid. D. Indiana Code § 9-30-10-4, subsection c, requires only ten judgments including at least one of the type enumerated in subsection (a) or (b), rather than eleven as contended by Stephic. E. Even after removal of an inappropriate judgment dated April 12, 1994, Stephic s driving record as of July 16, 1996 included the number and kind of judgments required by I.C. § 9-30-10-4, subsection c, and the BMV s determination that he was an HTV was then valid. F. Stephic has failed to prove that he is entitled to post-conviction relief under case 20D05-0505-PC-3. G. As a consequence of his sentencing on October 21, 1996 Stephic s driving privileges were forfeited for life. H. On April 6, 1998, when Stephic again operated a motor vehicle, the lifetime forfeiture of his driving privileges was valid and in effect. I. Stephic has failed to prove that he entitled to post-conviction relief under case 20D05-0505-PC-2. (App. 30-13) (citations omitted). DECISION A post-conviction petitioner bears the burden of establishing his claims by a preponderance of the evidence. Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004); Ind. Post-Conviction Rule 1(5). When reviewing the denial of a petition for post-conviction relief, we will neither reweigh the evidence nor judge the credibility of the witness. Id. 4 Thus, to prevail on appeal from the denial of post-conviction relief, the petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite to that reached by the post-conviction court. Id. We will reverse a postconviction court s findings and judgment only upon a showing of clear error. Id. Thus, we must be left with a definite and firm conviction that the post-conviction court has made a mistake. Id. [F]indings of fact are accepted unless clearly erroneous, but no deference is accorded conclusions of law. Id. Stephic asserts he is entitled to post-conviction relief because the trial court found his license suspension was based on a material error. We disagree. In State v. Starks, 816 N.E.2d 32, 35 (Ind. 2004), our Supreme Court held that if a person demonstrates to either the BMV or a review court that a material error resulted in an HTV determination, the person is afforded the opportunity to pursue postconviction relief in the court where the person pled guilty to driving with a suspended license. This is not to say however that relief automatically will be granted. Id. That is because the essence of the HTV offense is the act of driving after having been so determined. Id. Because the underlying offense is later challenged or set aside does not mean the HTV adjudication is invalid. Id. Therefore, the proper focus of our inquiry . . . is not whether the adjudication itself was valid, but rather whether the petitioner was aware of his adjudication as an HTV at the time of his conviction, and whether his guilty plea was based on a factual basis at that time. Hoaks v. State, 832 N.E.2d 1061, 1064 (Ind. Ct. App. 2005) (emphasis in original), trans. denied. A sufficient factual basis exists where a person 5 admits to driving a vehicle, knowing that his license has been suspended. Id. (citing Starks, 816 N.E.2d at 34). In this case, Stephic received notice that the BMV had suspended his license for a period of five years. Aware that his license was suspended, Stephic twice drove a vehicle and pled guilty to the same without challenging the HTV determination. We cannot say the trial court erred in denying Stephic s petition for post-conviction relief. Affirmed. NAJAM, J., and FRIEDLANDER, J., concur. 6

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