STATE оf Indiana, Appellant-Plaintiff, v. Shawn MESSENGER, Appellee-Defendant.
No. 49A05-9312-CR-472
Court of Appeals of Indiana, Fifth District
April 28, 1995
650 N.E.2d 702
D. Michael Bowman and Michael A. Ksenak, Bowman & Ksenak, Indianapolis, for appellee.
OPINION
RUCKER, Judge.
The State of Indiana charged Shawn Messеnger with Operating a Vehicle while Intoxicated,1 and Operating a Vehicle with ten hundredths percent or more by weight of alcohol in his blood.2 Both charges were filed as Class D felonies because Messenger had been previously convicted of OWI.3 On motion by Messenger, the trial court dismissed the enhanced charges reasoning that the prior conviction on which the enhancements were based hаd been vacated. The State appeals contending that the trial court erred in entering its order of dismissal. We agree and therefore reverse.
Messenger has a history of alcohol related traffic offenses. In August 1988, he was charged with and convicted of Operating a Vehicle While Intoxicated, as a Class A misdemeanor. Three years later Messenger
The offenses on which the instant appeal are based were filed February 13, 1993. Specifically, Messenger was charged with Operating a Vehicle While Intoxicated with a Prior Conviction of Operating while Intoxicated (“OWI With a Prior“) and Operating a Vehicle with ten hundredths percent or more by weight of alcohol in his blood with a Prior Conviction of Operating while Intoxicated (“Operating with .10% with a Prior OWI“). Both offenses were basеd on Messenger‘s 1991 conviction.
Although the record is not clear concerning the exact date, at some point Messenger filed a petition for post-conviction relief challenging his 1988 conviction. The petition was granted. Thereafter, in July 1993, while the instant charges were pending, Messenger filed a petition before the Madison County Court (County Court) where the judgment of conviction had been originally еntered, seeking to correct the 1991 conviction. According to Messenger the 1991 conviction for OWI with a Prior was no longer correct because the 1988 conviction on which the 1991 conviction was based had been set aside by way of post conviction relief. The County Court agreed and entered an order which dictated in relevant part:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that SHAWN E. MESSENGER‘s conviction dated August 19, 1991, for operating a motor vehicle while intoxicated with a prior conviction should be and hereby is vacated and set aside. That Entry of Conviction of operating a vehicle while intoxicated as a Class A misdemeanоr should be and hereby is entered of record and the Defendant‘s driver‘s license should be suspended for a period of thirty (30) days with credit, and a probationary license for a period of one hundred eighty (180) days with credit is hereby ORDERED.... The Indiana Bureau of Motor Vehicles is further ORDERED to show an Entry of Conviction ... showing that SHAWN E. MESSENGER is convicted of operating a motor vehicle while intoxicated as a Class A misdemeanor and his license is suspended for a period of thirty (30) days with full credit as of the date of this Order, and a probationary license for a period of one hundred eighty (180) days with full credit as of the date of this Order....
DATED: July 13, 1993
Record at 28-29 (emphasis added).
Armed with the forеgoing order, Messenger filed in the Marion Municipal Court (“trial court“) a Motion To Dismiss the pending charges of OWI With a Prior and Operating with .10% with a Prior OWI. According to Messenger because the County Court correctеd the 1991 conviction by vacating it, and entering a new OWI conviction dated July 13, 1993, he now does not have a conviction prior to February 1993. The trial court agreed and dismissed the charges as enhanced. Thus, thе charges now pending against Messenger are OWI, and Operating With .10%. Both charges are Class A misdemeanors. This interlocutory appeal ensued.
The State contends the trial court erred in dismissing the enhanсed charges. According to the State the County Court only vacated the enhanced portion of the 1991 conviction and did not vacate the conviction as it related to the Class A misdemeanor. Thus, the State continues, as of February 1993, when the instant offenses were filed, Messenger still had a prior OWI offense dated August, 1991. Messenger counters that the County Court‘s order is clear and unambiguous. In sum, the County Court speсifically vacated in toto the 1991 conviction and entered a new conviction dated July 13, 1993. Messenger argues now as he did before the trial court that because of the County Court‘s order, he now no longer has a “prior” conviction of OWI.
In support of his contention Messenger cites Brown v. State (1993), Ind.App., 613 N.E.2d 69, trans. denied, and asserts that it is dispositive of the issue before us. In Brown, the defendant sought post-conviction relief from his plea of guilty to OWI With a Prior, a Class D felony. That offense was prеdicated on two prior offenses for OWI
Brown provides Messenger no refuge. That case essentially stands for the proposition that the charge of OWI With a Prior, as a Class D felony, can only be treated as OWI as a Class A misdemeanоr where the predicate offense has been vacated. Our determination in that regard was critical because Brown not only represented a case of first impression in this state, but also casе authority was conflicting on whether a defendant could collaterally attack a prior conviction by challenging the underlying conviction. See, e.g., Lewis v. United States 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980); Gentry v. State (1988), Ind.App., 526 N.E.2d 1187, trans. denied, compare Olinger, 494 N.E.2d 310, and Coble, 500 N.E.2d 1221.
The issue is now settled. An enhanced conviction of OWI With a Prior cannot stand where the predicate offense has been vacated. However, that determination is not dispositive of the question before us. Messenger contends that the predicate offense in this case has been vacated and thus the trial court properly dismissed the instant charges as Class D felonies. We disagree.
A person who violates section 1 or 2 of this chapter commits a Class D felony if:
(1) the person has a previous conviction of operating while intoxicated; and
(2) the previous conviction of operating while intoxicated occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of this chapter.
The enhancement provisions under the foregoing statue are analogous to the еnhancement provisions under the habitual offender statute. See
The same result is required where a defendant successfully challenges the enhancement of his conviction for OWI. The enhanced portion of the offense may be vacated. However, the underlying offense is left undisturbed. Thus, when Messenger successfully challenged his 1991 cоnviction of OWI With a Prior, arguing that it could not stand as a Class D felony because the charge on which the enhancement was based had been set aside, the predicate offense of OWI as a Class A misdemeanor was not affected. Indeed, the Municipal Court‘s order indicated that Messenger‘s “conviction ... for operating a motor vehicle while intoxicated with a prior conviction [OWI With a Prior] should be and hereby is vacated and set aside.” Record at 28 (emphasis added). The court did not vacate or set aside the underlying offense of OWI. Although the order is dated August 13, 1993, we do not interpret it as a judgment оf conviction for a new charge as of that date. Rather, Messenger was convicted of the predicate offense of OWI as a Class A misdemeanor on April 19, 1991. Only the enhanced portion of the offense was set aside on August 13, 1993. Because Messenger‘s
Judgment reversed.
SHARPNACK, C.J., concurs.
SULLIVAN, J., dissents with separate opinion.
SULLIVAN, Judge, dissenting.
The majority correctly states that where a defendant successfully challenges a prior conviction which gave risе to an enhancement of an OWI offense, “[t]he enhanced portion of the offense may be vacated.” Op. at 704 (emphasis supplied).
The fact remains, however, that is not what the Madison County Court did on July 13, 1993. Rather, the court vacated the entire conviction. It did not merely vacate the enhancement portion. The order is clear and unambiguous in this respect. Furthermore, the court ordered the Bureau of Motor Vehicles to expunge “said August 19, 1991 conviction“. Appellant‘s Brief at 6 (emphasis supplied). It did not order only the enhancement expunged.
The order of July 13, 1993, vacated and set aside the prior conviction. The conviction was for OWI and that conviction was enhanced by reason of the 1988 conviction. The order further sets forth that “[e]ntry of conviction [of OWI] should be and hereby is entered.” Op. at 703 (emphasis supplied). The date of that order and therefore the date of the entry of conviction was July 13, 1993. It did not purport to be a nunc pro tunc entry as of August 19, 1991.
The Appellee‘s position is well taken. On February 13, 1993, when he committed the instant offense, he did not have a valid prior conviction.