# Abernathy v. Gulden

> Indiana Court of Appeals · November 30, 2016 · 46 N.E.3d 489

URL: https://www.frixlaw.com/law-library/cases/7078045

## Case

- **Full name:** Kent W. ABERNATHY, Commissioner of the Indiana Bureau of Motor Vehicles and Bernard Carter, Prosecuting Attorney for Lake County, Appellants-Respondents v. Eric C. GULDEN, Jeremy Crawford, David J. Klahn, John P. Martin, and James M. Panozzo, Appellees-Petitioners
- **Court:** Indiana Court of Appeals
- **Decided:** November 30, 2016
- **Citations:** 46 N.E.3d 489; 2015 WL 7710299
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Altice, Brown, Riley
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7078045

## Opinion text

BROWN, Judge,
dissenting.
[28] I respectfully dissent from the majority’s conclusion that the addition of subsection (e) to the habitual violators statute at Ind.Code § 9-30-10-4 was procedural in nature. The majority concludes that the amendment did not change the elements of the habitual violator offense, but rather sought only to clarify the calculation method used in the habitual violator determination. I disagree.
[29] Prior to the enactment of subsection (e), Ind.Code § 9-30-10-4 provided only that a person who obtained three qualifying judgments within ten years was a habitual violator. Ind.Code § 9-30-10-4(b) (2010). Under that version of the *498 statute, based on the dates judgments were entered on their qualifying offenses, Appellees would not have been deemed or determined to be habitual violators. Following the enactment of subsection (e), the dates of the offenses, rather than the dates of the judgments, are used in “determining the number of judgments accumulated within a ten (10) year period” and thus the elements of the habitual offender offense are changed. Ind.Code § 9-30-10-4(e) (2012) (enacted by Pub.L. No. 125-2012, § 349 ). As the elements are different, this change was not merely procedural in nature.
[30] As the majority states, an amendment is procedural for ex post facto purposes, if it “neither changes the elements of the crime nor enlarges its punishment.” Ritchie v. State, 809 N.E.2d 258, 264 (Ind.2004), reh’g denied, cert. denied, 546 U.S. 828 , 126 S.Ct. 42 , 163 L.Ed.2d 76 (2005). As applied to Appellees, the enactment of subsection (e) resulted in determinations, specifically that Appellees were habitual violators, that were not and could not have been made prior to the change in the statute. While the majority may be correct that subsection (e) clarifies the calculation method used to determine whether persons are habitual violators under Ind. Code § 9-30-10-4 , that clarification as applied to Appellees defined persons as habitual violators who would not have been previously defined as such. I believe that the enactment of subsection (e) changed the elements of the habitual violator offense as to Appellees, that the amendment was not procedural in nature, and that as applied to Appellees the amendment violates the prohibition on ex post facto laws in the Indiana and United States Constitutions.
[31] For the foregoing reasons, I would affirm the rulings of the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7078045. Public record. Not legal advice.