D.S.B., Appellant-Defendant, v. STATE OF INDIANA (2003)

MEMORANDUM DECISION

On March 24, 1997, D.B. was arrested for operating his vehicle while intoxicated. On November 18, 1997, he pleaded guilty to the charge of Operating While Intoxicated, as a Class D felony, in exchange for the State recommending that, among other conditions, his license be suspended for one year beginning on March 24, 1997. The trial court accepted D.B.’s guilty plea on December 31, 1997, and sentenced him accordingly.

After his arrest, D.B.’s license had been administratively suspended by the Bureau of Motor Vehicles (“BMV”) for 180 days. Prior to the time that D.B. was sentenced, his license was reinstated by the BMV. The trial court's sentencing order indicated that D.B.’s license was to be suspended for one year beginning on March 24, 1997. The trial court gave D.B. credit for 217 days suspension already served prior to the reinstatement of his license and ordered that the remaining 148 days suspension be served. However, in making the notation regarding the imposition of the remaining 148 days suspension in the margin of the sentencing order, the trial court wrote that the suspension was to begin at 6 p.m. on “12-31-98.” Exhibits at 56. The BMV interpreted the order to mean that D.B.’s license was to be suspended for one year beginning on March 24, 1997 and ending on March 23, 1998. This interpretation by the BMV erroneously gave D.B. credit for days on which his license was not suspended. The BMV's interpretation also disregarded the handwritten notation that the remainder of the suspension begin on December 31, 1998.

On March 7, 1998, D.B. was arrested for driving while suspended.¹ With the advisement of counsel, D.B. pleaded guilty to the driving while suspended charge in Noblesville City Court. Following that conviction, the BMV suspended D.B.’s license for ten years because of his status as a habitual traffic violator. D.B. obtained new counsel who subsequently reviewed his court records and realized that an error had been made on the December 31, 1997 sentencing order in that the trial court had written that the remaining portion of the suspended sentence be served beginning “12-31-98” and not 12-31-97 as had been previously thought. D.B. then sought post-conviction relief.

A post-conviction proceeding does not provide the convicted with an opportunity for a super-appeal. Baker v. State, 768 N.E.2d 477, 479 (Ind. Ct. App. 2002). Instead, a post-conviction proceeding provides the petitioner with the opportunity to present issues which were not known at the time of the original trial or which were not available on direct appeal. Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000), trans. denied. A petitioner bears the burden of establishing the grounds for post-conviction relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). Following a denial of post-conviction relief, a petitioner must convince this court that the evidence as a whole leads unerringly and unmistakably to a decision which is opposite that reached by the post-conviction court. Baker, 768 N.E.2d at 479. We will accept the post-conviction court's findings of fact unless clearly erroneous, but we do not defer to the court's conclusions of law. Id. We do not reweigh the evidence or judge witness credibility. Bigler, 732 N.E.2d at 194. We examine only the probative evidence and the reasonable inferences drawn therefrom which support the post-conviction court's ruling. Id.

The crux of this appeal is the interpretation of the trial court's December 31, 1997, sentencing order. To support his claim that the BMV interpreted the sentencing order incorrectly, D.B. presented as evidence his own testimony and copies of the plea agreement, the written sentencing order entered on December 31, 1997, and his BMV records. The State presented a copy of a nunc pro tunc order issued on April 24, 2002, by the same trial court which had entered the written sentencing order. The nunc pro tunc order stated, “Court, by nunc pro tunc corrects [its] Order dated 12/31/97, after a review of the taped proceedings, and shows that the remaining license suspension began at 6:00 p.m. on 12/31/97.” Exhibits at 58 (emphasis supplied).

On appeal, D.B. alleges that the post-conviction court could not use the nunc pro tunc order to change a previous ruling. See Tyson v. State, 622 N.E.2d 457, 460-61 (Ind. 1993) (stating that a court may not use a nunc pro tunc entry as a way to change a ruling it made, but may do so as a way of placing in the record something which occurred on a given day but was omitted). However, D.B. did not object to the admission of the nunc pro tunc order at the post-conviction proceeding. Failure to object at trial to the admission of evidence results in waiver of the issue upon appeal. Stephens v. State, 735 N.E.2d 278, 281 (Ind. Ct. App. 2000).

Turning to the evidence which was presented, the written sentencing order clearly states in handwritten notation in the margin that the remaining 148 day suspension was to begin on December 31, 1998. However, the main body of the written sentencing order also states that the one year suspension was to begin on March 24, 1997. D.B. testified that when he left the hearing on December 31, 1997, he believed that the remaining 148 day suspension was to begin on that day. Further, in response to the prosecutor's question about whether D.B. had informed the trial court that he “had [his] license back and that [he] needed additional time, i.e., six p.m., in order to start the suspension[,]” D.B. answered in the affirmative. Transcript at 26. Based upon D.B.’s testimony that he believed that his suspension began on December 31, 1997, the plea agreement and written sentencing order stating that the one-year suspension began on March 24, 1997, and the trial court's nunc pro tunc order stating that a review of the taped proceedings indicated that the suspension was to begin on December 31, 1997, D.B. has failed to convince this court that the evidence leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.

The denial of post-conviction relief is affirmed.

FOOTNOTES

1.   At the time that he was arrested on March 7, D.B.’s license had also been suspended for a “No Insurance-Ticket,” effective February 15, 1998 through May 16, 1998. Exhibits at 50. D.B. alleges that the February 15 suspension was in error and was expunged from his records.

SULLIVAN, Judge

SHARPNACK, J., and KIRSCH, J., concur.