Court of Appeals of Indiana | Opinion 49A02-1406-CR-412 | April 9, 2015 Page 1 of 15

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

I N T H E

COURT OF APPEALS OF INDIANA

Terrence Strong,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

April 9, 2015

Court of Appeals Case No.

49A02-1406-CR-412

Appeal from the Marion Superior 

Court

The Honorable Kimberly J. Brown, 

Judge

Cause No. 49F07-1108-CM-60947

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 
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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 
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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 “[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 
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Notice of Appeal shall be filed no later than 7-6-14.” Id. at 62. Strong filed his 

Belated Notice of Appeal on June 16, 2014.

Discussion and Decision

I. Belated Notice of Appeal

[6] We first address the State’s cross-appeal issue: whether the trial court properly 

granted Strong permission to file a belated notice of appeal. Indiana PostConviction Rule 2 provides:

Eligible defendant defined. An “eligible defendant” for purposes of this 

Rule is a defendant who, but for the defendant’s failure to do so 

timely, would have had the right to challenge on direct appeal a 

conviction or sentence after a trial or plea of guilty by filing a notice of 

appeal, filing a motion to correct error, or pursuing an appeal.

* * *

Section 1. Belated Notice of Appeal

(a) Required Showings. An eligible defendant convicted after a 

trial or plea of guilty may petition the trial court for permission to file a 

belated notice of appeal of the conviction or sentence if:

(1) the defendant failed to file a timely notice of appeal;

(2) the failure to file a timely notice of appeal was not 

due to the fault of the defendant; and

(3) the defendant has been diligent in requesting 

permission to file a belated notice of appeal under this 

rule.

[7] Because the trial court held a hearing on Strong’s motion to file a belated notice 

of appeal, we review the trial court’s ruling for an abuse of discretion. Cole v. 

State, 989 N.E.2d 828, 830 (Ind. Ct. App. 2013), trans. denied. The defendant 

bears the burden of proving by a preponderance of the evidence that he was 
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without fault in the delay and was diligent in pursuing permission to file his 

belated notice of appeal. Id. As there are no set standards for showing lack of 

fault or diligence, each case turns on its own facts. Moshenek v. State, 868 

N.E.2d 419, 423 (Ind. 2007). However, relevant factors to be considered 

include: “the defendant’s level of awareness of his procedural remedy, age, 

education, familiarity with the legal system, whether the defendant was 

informed of his appellate rights, and whether he committed an act or omission 

which contributed to the delay.” Id. (citation omitted). “Because diligence and 

relative fault are fact sensitive, we give substantial deference to the trial court’s 

ruling.” Id. 

[8] The State first alleges that Strong failed to prove that he had been diligent in 

pursuing his appeal. At the hearing on his motion for permission to file a 

belated notice of appeal, Strong testified that neither the trial court nor his trial 

counsel made him aware of his appellate rights. The transcript of his 

sentencing hearing, which was admitted into evidence, and the testimony of his 

trial counsel support his statements. In addition, Strong testified that it was his 

wish to appeal his conviction and sentence and had he been advised of his 

appellate rights, he would have done so in a timely fashion. The State did not 

cross-examine Strong to elicit information about his independent awareness of 

his appellate rights, his education, or his familiarity with the legal system, and 

in fact, we are made aware of no opposition at all from the State with respect to 

Strong’s initial request for permission to file a belated notice of appeal. Upon 

receiving permission to file a belated notice of appeal, Strong’s file was lost 
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through no fault of his own and his belated notice of appeal was not timely 

filed. Within just a few days of the missed deadline, however, he again sought 

permission to file a belated notice of appeal. By all accounts, Strong acted 

without fault and with personal diligence in pursuing permission to file a 

belated notice of appeal.

[9] The State also alleges, in a footnote, that because Strong challenges his traffic 

infraction and fine, which is a civil penalty, he does not qualify as an “eligible 

defendant” under Post-Conviction Rule 2 for purposes of pursuing this appeal. 

An “eligible defendant” is one who, but for his failure to do so in a timely 

manner, would have the “right to challenge on direct appeal a conviction or 

sentence after a trial or plea of guilty . . . .” Ind. Post-Conviction Rule 2. The 

State argues, and the dissent agrees, that Strong is not challenging a conviction 

or sentence and that his appeal brought under the authority of Post-Conviction 

Rule 2 should be dismissed.1 We disagree.

[10] Strong’s case as a whole was designated below as a criminal misdemeanor case, 

because in addition to the traffic infraction, Strong was alleged to have operated 

 

1 The dissent also notes that Post-Conviction Rule 1 provides that the remedy of post-conviction relief is 

available to a person who has been convicted of a crime and does not believe Strong falls within the purview 

of the post-conviction rules because a traffic infraction is not a “crime.” Post-Conviction Rule 1 provides that 

“[a]ny person who has been convicted of, or sentenced for, a crime by a court of this state . . . may institute at 

any time a proceeding under this Rule to secure relief.” P-C.R. 1(1)(a). Rule 1 further states that “[t]his 

remedy is not a substitute for direct appeal from the conviction and/or sentence and all available steps 

including those under Rule PC 2 should be taken to perfect such an appeal.” P-C.R. 1(1)(b) (emphasis added). 

Although Strong seeks a post-conviction remedy, he has not filed a petition for post-conviction relief under 

Rule 1 and Post-Conviction Rule 1(1)(b) makes it clear that the remedies available under Rules 1 and 2 are 

separate. We therefore do not believe that whether a traffic infraction can be defined as a “crime” is 

determinative.
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a vehicle while intoxicated and/or with a blood alcohol content in excess of 

.08, both misdemeanors. Therefore, we cannot view the traffic infraction in 

isolation just because vacating that infraction and ensuing fine is the relief 

Strong requests. He requests that relief because the infraction is allegedly in 

violation of double jeopardy principles when considered in conjunction with his 

misdemeanor conviction.

2

[11] Moreover, even if we do view the infraction in isolation, the Rules of Appellate 

Procedure governing a direct appeal classify Strong’s case as a criminal appeal. 

Appellate Rule 2(G) defines “Criminal Appeals” as “those cases which were 

designated by the originating court as . . . Criminal Misdemeanor – CM; . . . 

Infraction – IF . . . .” Traffic infractions may be civil proceedings by statute, 

State v. Hurst, 688 N.E.2d 402, 405 (Ind. 1997), overruled on other grounds by Cook 

v. State, 810 N.E.2d 1064 (Ind. 2004), but they are nonetheless classified as 

criminal for purposes of appeal, cf. Cunningham v. State, 835 N.E.2d 1075, 1079 

n.4 (Ind. Ct. App. 2005) (noting that although traffic violations are not criminal 

proceedings, they remain “quasi-criminal” in nature in the sense that the 

procedures through which they are adjudicated “bear a likeness to those 

procedures employed in adjudicating criminal offenses”; for example, they are 

enforced by police, initiated and litigated by a prosecuting attorney, and 

 

2 We also note that the trial court could not have improperly granted Strong’s motion to file a belated notice 

of appeal for this reason because the trial court did not know – and did not have to know – what issues 

Strong would be raising on appeal.
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violators are fined by the government), trans. denied. Strong should be entitled 

to the benefit of Post-Conviction Rule 2 as in other criminal appeals.

[12] Finally, even if Strong’s appeal should be treated as a civil appeal despite the 

overall nature of the case and the designation given to it by the Appellate Rules 

such that Post-Conviction Rule 2 does not provide a viable avenue for filing a 

belated notice of appeal, In re Adoption of O.R. would offer him an opportunity 

to demonstrate “extraordinarily compelling reasons” justifying the filing of a 

belated notice of appeal. 16 N.E.3d 965, 971-72 (Ind. 2014). The trial court, in 

twice granting Strong’s motions to file a belated notice of appeal, must have 

found compelling reasons to do so, and we give substantial deference to its 

decision. 

[13] For the foregoing reasons, we hold the trial court’s decision to grant Strong 

permission to file a belated notice of appeal was not an abuse of discretion. We 

further reject the State’s invitation to dismiss and instead consider Strong’s 

appeal on its merits.

II. Double Jeopardy

[14] Strong contends there is a reasonable possibility that evidence of a single act—

failure to stop at a stop sign—was used to prove that he committed a traffic 

infraction and also to establish endangerment supporting the elevation of the 

OWI offense from a Class C misdemeanor to a Class A misdemeanor.

[15] Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall 

be put in jeopardy twice for the same offense.” “[T]wo or more offenses are the 
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‘same offense’ in violation of Article 1, Section 14 of the Indiana Constitution 

if, with respect to either the statutory elements of the challenged crimes or the 

actual evidence used to convict, the essential elements of one challenged offense 

also establish the essential elements of another challenged offense.” Cross v. 

State, 15 N.E.3d 569, 571 (Ind. 2014) (quoting Richardson v. State, 717 N.E.2d 

32, 49 (Ind. 1999) (emphasis in original)). We review double jeopardy claims 

de novo. Calvert v. State, 14 N.E.3d 818, 822 (Ind. Ct. App. 2014).

[16] Strong contends his OWI conviction and traffic infraction violate the actual 

evidence test. Under the actual evidence test, 

we examine the actual evidence presented at trial in order to determine 

whether each challenged offense was established by separate and 

distinct facts. To find a double jeopardy violation . . ., we must 

conclude that there is a reasonable possibility that the evidentiary facts 

used by the fact-finder to establish the essential elements of one offense 

may also have been used to establish the essential elements of a second 

challenged offense. 

Garrett v. State, 992 N.E.2d 710, 719 (Ind. 2013) (quotation omitted). The 

double jeopardy clause is not violated when the evidentiary facts establishing 

the essential elements of one offense also establish only one or even several, but 

not all, of the essential elements of a second offense. Id. Determining the 

existence of a “reasonable possibility” requires a “practical assessment of 

whether the [fact finder] may have latched on to exactly the same facts for both 

convictions.” Id. at 720 (alteration in original).
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[17] Assuming that Strong was placed in jeopardy with respect to his traffic 

infraction such that it could be vacated on double jeopardy grounds,3there is no 

need to do so here. To prove Strong violated Indiana Code section 9-21-8-32, 

the State had to establish by a preponderance of the evidence that Strong failed 

to make a proper stop at a stop sign.4 To convict Strong of OWI, the State had 

to prove beyond a reasonable doubt that Strong operated his vehicle while 

intoxicated in a manner that endangered any person. Ind. Code § 9-30-5-2(b). 

Some evidence beyond intoxication is required to prove the endangerment 

element. Outlaw v. State, 918 N.E.2d 379, 381-81 (Ind. Ct. App. 2009), adopted 

by 929 N.E.2d 196 (Ind. 2010). As noted above, Strong asserts that the 

evidence of endangerment is that he did not stop at the stop sign on Denwood 

Avenue before turning onto 38th Street and thus, the evidentiary facts 

 

3

In State v. Hurst, our supreme court noted under federal double jeopardy analysis that “jeopardy” is not 

limited to criminal punishments: “nominally ‘non-criminal’ sanctions” can be a jeopardy if “the sanction is 

so punitive in effect that it can no longer be said to serve the remedial purposes of a civil sanction.” 688 

N.E.2d at 404. Hurst confronted the question of whether the imposition of a fine for committing the 

infraction of failure to yield the right-of-way precluded a subsequent prosecution for reckless homicide arising 

out of the same act. Finding that the legislature intended traffic infractions to be civil proceedings, that the 

enforcement of the failure to yield statute serves several remedial purposes, that the statute lacks a scienter 

requirement, and that the fine and court costs of approximately $60 was not grossly disproportionate, the 

court held “that defendant’s fine for violation of the failure to yield the right-of-way statute did not constitute 

a first jeopardy under the [federal] Double Jeopardy Clause.” Id. at 406. Because the defendant had not yet 

been criminally prosecuted and placed in jeopardy for his actions, the reckless homicide prosecution could 

proceed and the court did not address whether failure to yield the right-of-way and reckless homicide were 

the same offense. Id. Hurst was decided prior to Richardson announcing a separate double jeopardy test 

under the Indiana Constitution and no case has since discussed this issue under the state analysis.

4 The statute reads that “[a] person who drives a vehicle shall stop at an intersection where a stop sign is 

erected at one (1) or more entrances to a through highway that are not part of the through highway and 

proceed cautiously, yielding to vehicles that are not required to stop.” 
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establishing the essential elements of OWI established all of the essential 

elements of the infraction. 

[18] Officer Elliott did testify that Strong failed to stop at a stop sign before turning. 

However, he also testified that Strong made an improper lane change when he 

made a right hand turn into the lane closest to the center line rather than the 

lane closest to the curb, pulling into the path of Officer Elliott’s vehicle and 

requiring Officer Elliott to abruptly apply his brakes to avoid a collision. See

Ind. Code § 9-21-8-21(a)(1) (“A person who drives a vehicle intending to turn at 

an intersection must do the following: [m]ake both the approach for a right 

turn and a right turn as close as practical to the right-hand curb or edge of the 

roadway.”). This evidence supports the endangerment element of Strong’s 

Class A misdemeanor OWI conviction and is independent of Strong’s failure to 

stop at the stop sign. Thus, Strong’s double jeopardy argument fails because the 

actual evidence is not the same.

Conclusion

[19] The trial court did not abuse its discretion in granting Strong’s motion(s) to file 

a belated notice of appeal and Strong properly proceeded under PostConviction Rule 2. However, Strong’s OWI conviction and traffic infraction 

do not constitute the same offense for Indiana double jeopardy purposes, and 

Strong is therefore not entitled to the relief he seeks. His OWI conviction and 

sentence and his traffic infraction and fine are affirmed.
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[20] Affirmed. 

Brown, J., concurs.

Bailey, J., dissents with opinion. 
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I N T H E

COURT OF APPEALS OF INDIANA

Terrence Strong,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff,

April 9, 2015

Court of Appeals Case No.

49A02-1406-CR-412

Appeal from the Marion Superior 

Court

The Honorable Kimberly J. Brown, 

Judge

Cause. No. 49F07-1108-CM-60947

Bailey, Judge, dissenting.

[21] I agree with the State that the Indiana Post-Conviction rules do not entitle 

Strong to challenge a nominal fine on belated appeal. See Reed v. State, 856 

N.E.2d 1189, 1193 (Ind. 2006) (observing that post-conviction proceedings do 

not afford a petitioner a “super-appeal” and that the post-conviction rules 

contemplate a narrow remedy for subsequent collateral challenges to 

convictions). In my view, dismissal is appropriate. I therefore respectfully 

dissent.

[22] Indiana Post-Conviction Rule 1(1)(a) specifies to whom the remedy of postconviction relief is available, that is: “Any person who has been convicted of, 
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or sentenced for, a crime by a court of this state [who makes certain specified 

claims].” (emphasis added.) Post-Conviction Rule 2, under which Strong 

sought relief, defines an eligible defendant as one who, but for his or her failure 

to do so timely, would have the right to challenge on direct appeal a conviction or 

sentence after a trial or plea of guilty. (emphasis added.) Our post-conviction rules 

afford relief in limited circumstances to those convicted of and punished for 

crimes. 

[23] “[T]raffic infractions are civil, rather than criminal, in nature and the State must 

prove the commission of the infraction by only a preponderance of the 

evidence.” Rosenbaum v. State, 930 N.E.2d 72, 74 (Ind. Ct. App. 2010), trans. 

denied.

5

 Strong was not convicted of, or punished for, a crime, so as to bring 

him within the purview of our post-conviction rules. P-C.R. 1. Dismissal is the 

appropriate remedy. See Witt v. State, 867 N.E.2d 1279, 1282 (Ind. 2007) 

(finding dismissal to be the appropriate remedy where a litigant failed to satisfy 

the requirements of Post-Conviction Rule 2).

[24] As the majority has observed, the trial court was unaware of the issue upon 

which the post-conviction petition would proceed. But when presented to this 

 

5

I acknowledge that Appellate Rule 2(G) defines criminal appeals to include infractions. The provision 

includes limiting language: “This definition is for ease of reference and does not change the substantive 

rights of the parties.” Id. Moreover, a perceived conflict between rules would be resolved with the more 

specific rule governing over the more general. See DeLage Landen Fin. Serv., Inc. v. Community Mental Health 

Center, Inc., 965 N.E.2d 693, 698 (Ind. Ct. App. 2012) (observing that “when two rules cover the same subject 

matter and one does so generally where the other does so specifically, the more specific rule prevails.”) 

Strong’s appeal, which might otherwise have been brought as a direct appeal of a civil infraction, is – due to 

its procedural posture – one which specifically invokes the post-conviction rules.
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Court, it is clear that the only issue upon which the petitioner can be afforded 

relief involves a civil infraction. Broadening the post-conviction rules by 

judicial fiat will foster belated collateral challenges to any infraction, undermine 

the principle of finality, and increase strain upon limited judicial resources. 

[25] Accordingly, I dissent.