BURTON v. STATE

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Court of Appeals of Indiana.

Albert BURTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.

No. 49A04–1602–CR–242.

Decided: December 07, 2016

John L. Tompkins, Brown Tompkins Lory & Mastrian, Indianapolis, IN, Attorney for Appellant. Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Case Summary

[1] Albert Burton pled guilty to operating a motor vehicle while driving privileges are suspended as a level 6 felony under Indiana Code Section 9–30–10–16. The version of the statute in effect when Burton committed the crime provided that a person convicted of a felony under the statute “forfeits the privilege of operating a motor vehicle for life.” Ind.Code § 9–30–10–16(c). Because this provision was repealed before he was sentenced, Burton argued that it did not apply to him. The trial court disagreed but stayed entry of judgment to allow Burton to perfect an interlocutory appeal on the issue. We affirm the trial court and remand with instructions to enter judgment accordingly.

Facts and Procedural History

[2] On November 15, 2014, a police officer stopped Burton's vehicle for a burned-out headlight. The officer determined that Burton's driving privileges were suspended as a habitual traffic violator. The State charged Burton with violating Indiana Code Section 9–30–10–16. When Burton committed the offense, the statute read in relevant part as follows:

(a) A person who operates a motor vehicle:

(1) while the person's driving privileges are validly suspended ․ and the person knows that the person's driving privileges are suspended ․

commits a Level 6 felony.

(c) In addition to any criminal penalty, a person who is convicted of a felony under subsection (a) forfeits the privilege of operating a motor vehicle for life. However, if judgment for conviction of a Class A misdemeanor is entered for an offense under subsection (a), the court may order a period of suspension of the convicted person's driving privileges that is in addition to any suspension of driving privileges already imposed upon the person.

Ind.Code § 9–30–10–16 (2014). Effective July 1, 2015, subsection (c) of the statute was repealed.

[3] Sometime thereafter, Burton signed a plea agreement in which he agreed to plead guilty as charged to a level 6 felony. The plea agreement contains the following language: “Total sentence of 545 days. Credit time. Remainder suspended on supervised probation. Defendant's license suspension open to argument. No AMS [alternative minimum sentencing, i.e., sentencing for a class A misdemeanor instead of a level 6 felony].” Appellant's App. at 23.

[4] On December 14, 2015, the trial court held a guilty plea and sentencing hearing. Burton argued that his driving privileges could not be forfeited for life under Indiana Code Section 9–30–10–16(c) because that subsection of the statute had been repealed, and he further argued that the trial court could suspend his driving privileges for a maximum of two and one-half years pursuant to a statute that was enacted after he committed the offense.1 The trial court disagreed. See Tr. at 4 (“[T]he suspension is open to argument but if it's a felony it's a lifetime suspension [sic].”).2 The trial court accepted Burton's guilty plea and stated that it would enter judgment of conviction as a level 6 felony, impose a sentence of 545 days pursuant to the plea agreement, and order “a lifetime driving license suspension [sic.]” Id. at 24. At Burton's request, the trial court stayed entry of judgment so that Burton could perfect an interlocutory appeal on the lifetime suspension issue, which he did.

Discussion and Decision

[5] The gist of Burton's argument is that the lifetime forfeiture provision of Indiana Code Section 9–30–10–16(c) does not apply to him because it was repealed after he committed the offense and before he was sentenced.3 As a general rule, the law in effect when a crime was committed is controlling. Collins v. State, 911 N.E.2d 700, 708 (Ind.Ct.App.2009), trans. denied. There are exceptions to this rule,4 but Burton does not assert, let alone offer any cogent argument, that any of those exceptions apply here. Therefore, we affirm the trial court's determination that the statute's lifetime forfeiture provision applies to Burton and remand with instructions to enter judgment accordingly.5

[6] Affirmed and remanded.

CRONE, Judge.

KIRSCH, J., and MAY, J., concur.