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Felony can't be modified to misdemeanor 9 years later

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In a case of first impression, the Court of Appeals reversed and remanded with instructions a trial court’s modification of a criminal sentence from a Class D felony to a Class A misdemeanor nine years after the appellee-defendant pleaded guilty to operating a vehicle while intoxicated.

The state appealed the Noble Superior Court’s modification in State of Indiana v. Jeffrey Brunner, No. 57A04-1003-CR-121. Jeffrey Brunner raised the issue of whether the state’s appeal was authorized by law, and the state questioned whether the trial court erred in granting Brunner’s petition for relief.

Because the Court of Appeals found that Brunner’s request was a petition of post-conviction relief, it held the state could appeal the decision. However, today's  opinion noted the court hadn’t recognized Brunner’s request as a petition for PCR, and had not entirely followed the rules for a PCR. “But ‘the failure to enter specific findings of fact and conclusions of law is not reversible error,’” wrote Judge Edward W. Najam Jr.

As for the issue of the trial court’s error in granting a modification from a felony to a misdemeanor, the COA found the statute does allow for such a change.

However, “Indiana Code Section 35-50-2-7(b), on which the trial court relied in granting Brunner’s request, states: ‘if a person has committed a Class D felony, the court may enter judgment of conviction of a Class A misdemeanor and sentence accordingly.’ Applying that statute to these facts is a question of first impression and requires us to divine the intent of the legislature,” Judge Najam wrote regarding the amount of time that had passed between the conviction and the petition for PCR.

In considering the General Assembly’s intent in writing the statute, the Court of Appeals concluded this authority of the court was meant to apply “to the moment the court first enters its judgment of conviction and before the court announces the defendant’s sentence. That intent is made clear in the language of the statute itself, which describes a timeframe after the finding of a Class D felony but before the entry of sentence. … That intent is also supported by the differences in sentences available to persons convicted of Class D felonies and those convicted of Class A misdemeanors,” Judge Najam wrote.

In this case, Brunner was charged with operating a vehicle while intoxicated in November 1999. He pled guilty in August 2000. It was his third conviction of an OWI, which the state would note in its responses to Brunner’s requests to modify his felony to a misdemeanor.

Brunner sent a letter to the court Dec. 26, 2007, regarding the August 2000 conviction asking for the felony to be changed to a misdemeanor. The state filed its objection April 14, 2008.  Following the June 3, 2008, hearing on the matter, the court denied Brunner’s request.

Brunner refiled his letter Jan. 15, 2009, and the state again filed a response. There was no order granting or denying the request.

Brunner again filed a letter asking for the modification Sept. 16, 2009, and the state again filed a response Sept. 28, 2009. Following an Oct. 16 hearing, the court granted Brunner’s request.

“Again, the trial court’s decision on whether to enter judgment on a Class D felony or a Class A misdemeanor … may be made only at the moment of the original entry of the judgment of conviction,” Judge Najam concluded. “That did not happen here. Instead, more than nine years after the trial court entered its judgment of conviction against Brunner as a Class D felony, the trial court revisited that issue, vacated the Class D felony conviction, and imposed a Class A misdemeanor conviction. The trial court’s reliance on Section 35-50-2-7(b) to grant the requested relief was contrary to the plain meaning of the statute and an abuse of discretion.”
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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