ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Gregory F. Zoeller Stacy R. Uliana 

Attorney General of Indiana Indianapolis, Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, Indiana

______________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 57S04-1010-CR-603

STATE OF INDIANA,

Appellant (Plaintiff below),

V.

JEFFREY BRUNNER,

Appellee (Defendant below).

_________________________________

Appeal from the Noble Superior Court, No. 57D01-9911-DF-260

The Honorable Robert E. Kirsch, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, 57A04-1003-CR-121

_________________________________

May 26, 2011

David, Justice.

On the defendant’s motion, the trial court modified the defendant’s conviction several 

years after the case had concluded. The Court of Appeals overturned the trial court on grounds 

that the trial court lacked statutory authority to modify the conviction and ordered the original 

conviction to be reinstated. We agree with the Court of Appeals and reverse the trial court’s 

order. We hold it was in violation of statutory authority to modify the conviction. We remand to 

the trial court to reinstate the original conviction.
2

Facts and Procedural History

In August 2000, Jeffrey D. Brunner entered a plea of guilty to operating while intoxicated 

as a Class D felony. At the time of his guilty plea, Brunner had an OWI conviction within the 

previous five years which elevated the matter to a Class D felony. Brunner also had an OWI 

conviction from July 1991. When going over Brunner’s constitutional rights, the trial court 

stated, “It is at least theoretically possible that a person found guilty of a Class D felony can have 

judgment of conviction entered and be sentenced as if it were a Class A misdemeanor.” The 

court further stated to Brunner, “Do you understand . . . If I accept [the plea agreement] I am 

bound by it and I can’t change it up or down.” The court then accepted Brunner’s guilty plea and 

immediately conducted the sentencing hearing. 

Thereafter, Brunner filed letters with the court requesting his conviction as a Class D 

felony be reduced to a Class A misdemeanor. In March 2009, the court held a hearing on 

Brunner’s request for modification of the judgment of conviction from a Class D felony to a 

Class A misdemeanor. At the hearing, Brunner requested the trial court modify his third OWI 

felony conviction to a misdemeanor because he believed his felony conviction was preventing 

him from obtaining a second job.1 Brunner neither served probation nor participated in any 

substance abuse treatment, but he served four-and-a-half months on work release for his 

sentence. At the March 2009 hearing, the trial court informed Brunner that it would be willing to 

modify his sentence to a misdemeanor if Brunner would submit to a substance abuse-assessment 

and complete any program of treatment or counseling recommended as a result of the 

assessment. 

At the follow up hearing in October 2009, Brunner informed the trial court his substanceabuse assessment revealed he had no problems and provided no further recommendation for 

counseling or treatment. At this hearing, Brunner also admitted to having a disorderly conduct 

conviction from 2002. The trial court granted the motion to modify the judgment of conviction 

 

1 Brunner stated to the trial court, “I think that you know on all the, uh, when you bid for employment they ask if 

you have a felony and of course I have to put yes and I think a lot of the jobs that I’ve gotten turned down, I know I 

was qualified for, but the reason why I am getting turned down is because I have the felony still on my record. So, 

that is the only reason that I am trying to get it lowered to a misdemeanor so it won’t come up on my record so I can 

try to find some more employment.” 
3

from a Class D Felony to a Class A misdemeanor. On October 16, 2009, the trial court entered 

an order titled “Modification of Conviction.” The order stated as follows: 

Hearing held on the Defendant’s Petition for Modification of his Conviction on 8-

10-00, from a Class D Felony to a Class A Misdemeanor. The State appears by 

Special Prosecuting Attorney, Clara Mary Winebrenner. The Defendant appears 

in person and without Counsel. Evidence and arguments had and concluded. The 

Court now modifies the judgment of conviction in this cause to Driving While 

Intoxicated, Second or Subsequent Conviction, as a Class A Misdemeanor, 

pursuant to Indiana Code 35-50-2-7(b). 

We granted transfer to address issues of jurisdiction and law. We hold this matter was 

properly pleaded under the statutes governing the modification of a conviction. We disagree 

with the Court of Appeals holding that defendant’s request was a petition for post-conviction 

relief; however, we agree with the Court of Appeals and hold that the trial court’s authority to 

reduce a Class D felony conviction to a Class A misdemeanor is limited to the moment of 

conviction and prior to sentencing. 

I. State’s Right to Appeal

The Court of Appeals, sua sponte, raised the issue, which was then fully briefed by both 

parties, whether the State had a right to appeal the trial court’s modification of conviction. 

The action taken by Brunner was a motion for modification of conviction, not a request 

for post-conviction relief. While reaching the correct conclusion, the Court of Appeals 

mistakenly described this action as a request for post-conviction relief under Post-Conviction 

Relief Rule 1(1)(a)(4), indicating there was evidence of material facts not previously presented 

and heard that requires vacation of the conviction or sentence in the interest of justice. The postconviction relief rule cited by the Court of Appeals is not a catch-all mechanism allowing for the 

introduction of new evidence that occurs after the conviction. The range of relief provided under 

the post-conviction rules is limited to “issues that were not known at the time of the original trial 

or that were not available on direct appeal.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 

2000). This Court has held that “the purpose of the post-conviction remedies is to give the 

appellant an opportunity to raise issues that were unknown or unavailable to him at the time of 

his original appeal.” Henderson v. State, 271 Ind. 633, 634, 395 N.E.2d 224, 226 (1979). We 
4

have previously assigned a test for new evidence brought under Post-Conviction Relief Rule 

1(1)(a)(4):

the petitioner must establish (1) that the evidence has been discovered since the 

trial; (2) that it is material and relevant; (3) that it is not cumulative; (4) that it is 

not merely impeaching; (5) that it is not privileged or incompetent; (6) that due 

diligence was used to discover it in time for trial; (7) that the evidence is worthy 

of credit; (8) that it can be produced upon a retrial of the case; and (9) that it will 

probably produce a different result. 

Torrence v. State, 263 Ind. 202, 206, 328 N.E.2d 214, 216 (1975) (quoting Emerson v. State, 259 

Ind. 399, 407, 287 N.E.2d 867, 871–72 (1972)). Clearly the new evidence of Brunner’s recent 

sobriety, while laudable, will not produce a different result at trial. He is still guilty of the crime 

committed, and he has not produced evidence that would likely end in a different result of 

conviction. The post-conviction rules do not apply to evidence of a person’s reformed character. 

The post-conviction rules were not intended to give defendants a super-appeal. McCary v. State, 

761 N.E.2d 389, 391 (Ind. 2002). 

Further, a court that hears a post-conviction claim must make findings of fact and 

conclusions of law on all issues presented. Ind. Post-Conviction Rule 1(6). Here the trial court 

failed to issue findings of fact and conclusions of law. In sum, this matter was never pleaded as 

a post-conviction petition, and the post-conviction rules do not allow for this type of evidence to 

be submitted. At all stages, this matter proceeded as a motion for modification of conviction. 

Neither the unrepresented pro se defendant Brunner, nor the prosecutor, nor the trial court 

referred to this matter in the record as anything but a motion to modify conviction, which the 

prosecutor argued the trial court had no authority to grant. The prosecutor was correct. 

Indiana has a strict historic precedent that criminal appeals by the State are statutorily 

defined. Indiana Code section 35-38-4-2 sets out the instances the State may appeal. The 

legislature expressly enumerates the criminal appeals the State may take. The State may appeal 

from orders (1) granting a motion to dismiss an indictment; (2) granting judgment for the 

defendant upon his motion to discharge because of delay or jeopardy; (3) granting a motion to 

correct errors; (4) upon question reserved the state if defendant is acquitted; (5) granting motion 

to suppress evidence, if the effect is to preclude further prosecution; (6) and certain interlocutory 

orders. Ind. Code § 35-38-4-2 (2008).
5

We have long recognized this bedrock fundamental of criminal appellate law: the State 

must have statutory authorization to bring an appeal of a criminal matter. The right of the State 

to appeal in a criminal matter is statutory, and the State cannot appeal unless given that statutory 

authorization by the legislature. State v. Huebner, 233 Ind. 566, 567, 122 N.E.2d 88, 89 (Ind. 

1954). The reason for such a rigid appellate right for the State is built upon the idea that if the 

State brings a citizen before its own tribunal and loses, “its avenging hand should be stayed 

except in unusual cases where the power to appeal was expressly conferred.” State v. Sierp, 260 

Ind. 57, 60, 292 N.E.2d 245, 246 (1973) (citing Carl V. Venters, Annotation, Right of 

Prosecution To Review of Decision Quashing or Dismissing Indictment or Information, or 

Sustaining Demurer Thereto, 92 A.L.R. 1137 (1934)). In Brunner’s instance, however, it is not 

the State that has brought him back before the tribunal. Not this time. Rather, it is Brunner 

himself who has petitioned the tribunal for favorable relief. 

In Hardley v. State, this Court carved out a minor exception to the precedent of 

legislature-authorized appeals for State criminal appeals. 905 N.E.2d 399, 403 (Ind. 2009). In 

Hardley, the State was attempting to appeal an erroneous sentence, which is not enumerated 

among the criminal appeals the State may take under Indiana Code section 35-38-4-2. This 

Court succinctly held that it was clearly unacceptable for a sentence to plainly exceed or 

otherwise violate statutory authority, and that “sound policy and judicial economy favor 

permitting the State to present claims of illegal sentence on appeal when the issue is a pure 

question of law that does not require resort to any evidence outside the appellate record.” Id. 

In this case, the State has timely appealed a judgment entered by the trial court modifying 

a conviction of defendant. The trial court took such action years after the issuance of the original 

conviction, without the consent of the State, and as we hold today, without the statutory authority 

to do so. Because the legislature did not provide the trial court the statutory authority to do this 

and because this is a pure question of law that does not require evidence outside the record, we 

hold that the State has the limited availability to appeal a trial court’s modification of conviction

under these particular circumstances. 
6

II. Modification of Conviction

Having determined the State’s right to appeal the matter, we now turn to the trial court’s 

authority to issue the order modifying Brunner’s conviction. We agree with the State and the 

Court of Appeals that the trial court improperly granted Brunner’s request. The applicable 

statute at the time of the conviction was Indiana Code section 35-50-2-7 (1998). It states, in 

relevant part, “if a person has committed a Class D felony, the court may enter judgment of 

conviction of a Class A misdemeanor and sentence accordingly.” I.C. § 35-50-2-7(b). This is a 

question of first impression which requires us to determine the intent of the legislature. We 

review matters of statutory interpretation de novo because they present pure questions of law. 

Gardiner v. State, 928 N.E.2d 194, 196 (Ind. 2010).

In interpreting statutes, we take words and phrases in their plain and usual meaning. I.C. 

§ 1-1-4-1(1) (2005). As such, we hold that the intent of the legislature in granting authority to 

the trial courts to reduce a Class D felony to a Class A misdemeanor was limited to the moment 

the trial court first entered its judgment of conviction and before the trial court announced its 

sentence.

2

 The Court of Appeals correctly ruled that the language of the statute itself described 

the specific timeframe codified for this action was after the finding of a Class D felony but 

before the pronouncement of a sentence, “the court may enter judgment of conviction . . . and

sentence accordingly.” I.C. § 35-50-2-7(b) (emphasis added). The judgment of conviction is 

entered first, and then the sentence is handed down. The legislature has not granted the trial 

court the authority to modify the conviction at any time other than while delivering the sentence. 

In further support of this legislative interpretation is the axiom that, with very little exception, a 

trial court no longer has authority over a defendant after the trial court issues its sentence. State 

ex rel Abel v. Vigo Circuit Court, 462 N.E.2d 61, 63 (Ind. 1984). 

We also agree with the Court of Appeals in its analysis of Indiana Code section 35-38-1-

1.5, which did not become effective until 2003 and thus is not applicable to Brunner specifically. 

However, Indiana Code section 35-38-1-1.5 is instructive in determining the legislative intent 

 

2 This is distinguishable from Gardiner v. State where the trial court also modified a conviction. In Gardiner, the 

conviction was modified from a Class D felony to a Class A misdemeanor under provisions of the plea agreement. 

928 N.E.2d at 197.
7

behind Indiana Code section 35-50-2-7(b). It is a rule of statutory interpretation that “courts will 

not presume the legislature intended to do a useless thing . . . .” N. Ind. Bank and Trust Co. v. 

State Bd. of Finance, 457 N.E.2d 527, 532 (Ind. 1983). Thus, the legislature would not have 

enacted Indiana Code section 35-38-1-1.5 except to allow for certain conviction modifications, 

which previously were not authorized by the legislature. In relevant part, Indiana Code section 

35-38-1-1.5 states as follows: 

(a) A court may enter judgment of conviction as a Class D felony with the 

express provision that the conviction will be converted to a conviction as a 

Class A misdemeanor within three (3) years if the person fulfills certain 

conditions. A court may enter a judgment of conviction as a Class D felony 

with the express provision that the conviction will be converted to a 

conviction as a Class A misdemeanor only if the person pleads guilty to a 

Class D felony that qualifies for consideration as a Class A misdemeanor 

under IC 35-50-2-7, and the following conditions are met:

(1) The prosecuting attorney consents.

(2) The person agrees to the conditions set by the court.

(b) For a judgment of conviction to be entered under subsection (a), the court, the 

prosecuting attorney, and the person must all agree to the conditions set by the 

court under subsection (a). Ind. Code § 35-38-1-1.5(a)–(b) (2008).

According to Indiana Code section 35-38-1-1.5, for a post-2003 conviction, the trial court 

could enter a conviction as a misdemeanor, but it must be entered within three years of the entry 

of judgment, all parties must agree to the conditions, and the defendant must meet those agreed 

upon conditions. Our reading of these two statutes together furthers our belief that the trial court 

had no authority to take the actions it took and modify Brunner’s conviction from a Class D 

felony to a Class A misdemeanor without approval from the State. The facts before us are that 

the State did not consent to this conviction modification, nothing was agreed upon by all parties 

at the time of original sentencing, and more than three years had passed. In fact, the trial court 

judge specifically told Brunner, “Do you understand . . . If I accept [the plea agreement] I am 

bound by it and I can’t change it up or down.” Furthermore, if the trial court’s ruling were 

allowed to stand, or any weight given to Indiana Code section 35-38-1-1.5, Brunner would 

receive a benefit he would not be allowed to receive under Indiana Code section 35-38-1-1.5 

because the three-year window for modification has long closed. 
8

Finally, we note the significant difference that exists between a Class D felony conviction 

and a Class A misdemeanor. The sentence for a person convicted of a Class A misdemeanor is 

up to one year in jail and up to a five-thousand-dollar fine. I.C. § 35-50-3-2 (2008). Meanwhile, 

the sentence for a Class D felony is a fixed term between six months and three years, with an 

advisory term of one-and-a-half years, and a fine of up to ten-thousand dollars. Id. § 35-50-2-7. 

Even further, there exists a stigma in culture between misdemeanor convictions and felony 

convictions. Often misdemeanor convictions are seen as college-aged high jinks or youthful 

indiscretions that harmed no one. On the other hand, felonies are met with much more suspicion 

and caution. As Brunner stated, most job applications question if an applicant has ever been 

convicted of a felony, drawing a line between a felony and misdemeanor. 

Although it may be equitable and desirable for the legislature to give a trial court 

discretion in modifying a conviction years later for good behavior, we recognize at this time the 

legislature has not given any such authority. It may be appropriate for a trial court judge to be 

able to weigh mitigating and aggravating factors such as the hardship on the defendant’s family 

in making a conviction-modification decision. One of the purposes of the discussion regarding 

sentencing reform is to keep those offenders in prison that need to be in prison and to give more 

favor to those offenders who deserve an earlier opportunity to be productive citizens. The trial 

court believed it was assisting a defendant who had demonstrated he was worthy of an 

opportunity to have his conviction modified. However, at this time, the legislature has not 

enacted any such authority for the trial court. 

Conclusion

The plain meaning of Indiana Code section 35-50-2-7(b), as well as the meaning taken in 

context with Indiana Code section 35-38-1-1.5, shows that the trial court erred in granting 

Brunner’s motion for modification of conviction. We reverse and remand with instructions for 

the trial court to reinstate the original judgment of conviction. 

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.