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Strong v. State

Court of Appeals of Indiana

April 9, 2015

Terrence Strong, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff,

Page 761

[Copyrighted Material Omitted]

Page 762

Appeal from the Marion Superior Court. The Honorable Kimberly J. Brown, Judge. Cause No. 49F07-1108-CM-60947.

ATTORNEY FOR APPELLANT: Suzy St. John, Marion County Public Defender, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Kenneth E. Biggins, Deputy Attorney General, Indianapolis, Indiana.

Robb, Judge. Brown, J., concurs. Bailey, J., dissents with opinion.

OPINION

Page 763

Robb, Judge.

Case Summary and Issues

[¶1] Following a bench trial, Terrence Strong was convicted of operating a vehicle while intoxicated (" OWI" ), a Class A misdemeanor, and sentenced to 365 days, all but ninety days suspended to probation. He was also found to have committed the traffic infraction of failing to stop at a stop sign, for which a fine was imposed. Strong did not file a notice of appeal within thirty days of the final judgment in his case, but he was later granted permission to file a belated notice of appeal. Strong now raises the sole issue of whether his traffic infraction and fine must be vacated because he was subjected to double jeopardy in violation of the Indiana Constitution. The State cross-appeals, contending the trial court improperly granted Strong's motion to file a belated notice of appeal. Concluding the trial court did not abuse its discretion in allowing Strong to file a belated notice of appeal but that Strong was not subject to double jeopardy, we affirm.

Facts and Procedural History

[¶2] In the afternoon of August 26, 2011, Indianapolis Metropolitan Police Department Officer Timothy Elliott was driving west on 38th Street. When he was within a block of the intersection with Denwood Drive, he observed Strong turn right from Denwood Drive into the left-most lane of westbound 38th Street without stopping. Officer Elliott was forced to slam on his brakes to avoid colliding with Strong. Because Officer Elliott believed Strong had failed to stop at a stop sign and had improperly changed lanes, he initiated a traffic stop during which he noticed Strong exhibited signs of intoxication. A subsequent chemical test showed Strong had a blood alcohol concentration of .10.

[¶3] The State charged Strong with OWI, a Class A misdemeanor; operating a vehicle with an alcohol concentration between 0.08 and 0.15 grams of alcohol per 100 milliliters of blood, a Class C misdemeanor; and failing to stop at a stop sign, a Class C infraction. Following a bench trial, Strong was found guilty of all charges on July 30, 2013. The trial court merged the two operating convictions, sentencing Strong to one year for the Class A misdemeanor, all suspended to probation but for ninety days to be served in community corrections. The trial court also imposed fines and costs of $100 with respect to the traffic infraction. Those fines and costs were later reduced to $1.00.

[¶4] On March 28, 2014, Strong filed a Verified Motion to Set Hearing Regarding Permission to File a Belated Notice of Appeal. The trial court granted the motion and held a hearing on May 2, 2014, at which Strong demonstrated that neither his attorney nor the trial court advised him of his right to appeal his convictions and sentence. At the conclusion of the hearing, the trial court granted his motion to file a belated notice of appeal and stated he had thirty days from May 2, 2014 in which to file his notice of appeal.

[¶5] On June 5, 2014, Strong filed a Verified Second Motion for Leave to File a Belated Notice of Appeal, alleging that Strong's Belated Notice of Appeal was not filed on or before June 2, 2014 because

Page 764

" [d]ue to a failure of the internal processes within the Appellate Division of the Marion County Public Defender Agency, Mr. Strong's file was misplaced. This error . . . is entirely the fault of counsel and the Marion County Public Defender Agency Appellate Division and not of Mr. Strong." Appellant's App. at 60. On June 6, 2014, the trial court granted the second motion and ordered " that [Strong] is again granted leave to file a Belated Notice of Appeal as of the date of this Order[.] Said Notice of ...


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