from the Hamilton Superior Court The Honorable Gail Z.
Bardach, Judge Trial Court Cause No. 29D06-1802-CM-1086
Attorney for Appellant James D. Crum Coots, Henke &
Wheeler, P.C. Carmel, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Caroline G. Templeton Deputy Attorney General
Clark Allen Hill ("Hill") was convicted of
Operating a Vehicle with an alcohol concentration equivalent
("ACE") of .15 or more,  a Class A misdemeanor, and
was adjudicated as an Habitual Vehicle Substance
Offender ("HVSO"). Hill raises one issue,
which we restate as whether the enhancement of his conviction
for operating while intoxicated ("OWI") by his
adjudication as a HVSO violates the federal
constitution's prohibition against double jeopardy.
and Procedural History
On February 11, 2018, Hill was stopped for speeding by a
Westfield, Indiana police officer. Tr. Vol. II at
13. Hill showed signs of intoxication, so the officer
conducted field sobriety tests, which Hill failed.
Id. Hill submitted to a portable breath test, which
indicated that he had consumed alcohol. Id. at
13-14. A certified chemical test later showed that Hill had
an ACE of .153 grams of alcohol per 210 liters of his breath.
Id. at 14. Hill was charged with Operating a Vehicle
with an ACE of .15 or more, a Class A misdemeanor, and OWI as
a Class C misdemeanor. Appellant's App. Vol. 2 at
Years before, Hill had been convicted of similar charges in
1995, 2001, and 2010. Tr. Vol. II at 14-15.
Accordingly, the State charged Hill as an HVSO, citing the
following prior convictions: 1) a 1995 Marion County
conviction for Operating a Vehicle with a BAC of .10 or more,
a Class C misdemeanor ("the 1995 Marion County
conviction"); 2) a 2010 Boone County conviction for OWI,
Endangering a Person, a Class A misdemeanor ("the 2010
Boone County conviction"); and 3) a 2001 Boone County
conviction for OWI, a Class A misdemeanor ("the 2001
Boone County conviction"). Appellant's App. Vol.
2 at 8.
At a July 13, 2018 hearing, Hill pleaded guilty to the Class
A misdemeanor charge and admitted to the HVSO charge. Tr.
Vol. II at 15-17. In support of the HVSO charge, the
State relied on the 1995 Marion County conviction and the
2010 Boone County conviction; it did not rely on the 2001
Boone County conviction because that conviction did not
appear on Hill's driving record. Id. at 14-15.
The trial court sentenced Hill according to the terms of the
plea agreement: one year for the Class A misdemeanor OWI
conviction, enhanced by one year for the HVSO adjudication.
Id. at 18; Appellant's App. Vol. 2 at
On September 7, 2018, Hill filed a motion to correct
erroneous sentence, alleging that the convictions used to
support the HVSO enhancement were previously used to support
an earlier habitual substance offender enhancement, and were
therefore ineligible to support the current enhancement.
Appellant's App. Vol. 2 at 53-70. Specifically,
Hill alleged that the 1995 Marion County conviction used in
this case to support his HVSO status was used to support his
habitual substance offender adjudication for the 2010 Boone
County conviction. Id. at 55, 59-60. On October 4,
2018, the trial court denied Hill's motion to correct
erroneous sentence. Id. at 7, 84. Hill now appeals.
Hill contends the trial court abused its discretion in
denying his motion to correct erroneous sentence, arguing
that the use of the 1995 Marion County conviction to support
his HVSO adjudication and sentence enhancement violated the
double jeopardy prohibition because that conviction was
earlier used to support his habitual substance offender
adjudication for the 2010 Boone County
In reviewing a trial court's decision on a motion to
correct erroneous sentence, we defer to the trial court's
factual findings and review the decision for an abuse of
discretion. Koontz v. State, 975 N.E.2d 846, 848
(Ind.Ct.App. 2012). An abuse of discretion occurs when the
trial court's decision is against the logic and effect of
the facts and circumstances before it. Id. As to
post-conviction matters, an appeal from the denial of
post-conviction relief is an appeal from a negative judgment.
Chism v. State, 807 N.E.2d 798, 801 (Ind.Ct.App.
2004). Thus, an appellant must show that the evidence as a
whole leads unerringly ...