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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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  1. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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