James E. Jones v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Jul 31 2018, 9:45 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren D. Bedwell Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Appellate Division
Lyubov Gore
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Jones, July 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-26
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Stanley E. Kroh,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
49G03-1611-F1-45794
Bailey, Judge.
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Case Summary
[1] James E. Jones (“Jones”) was found guilty of Unlawful Possession of a Firearm
by a Serious Violent Felon, a Level 4 felony (“SVF”),1 and determined to have
the status of a habitual offender.2 The trial court sentenced Jones to six years in
the Indiana Department of Correction, and imposed an additional twelve years
as a habitual-offender sentence enhancement. Jones now appeals, challenging
the enhancement of his sentence. He argues that the enhancement is improper
because the felonies supporting the enhancement are not unrelated, and that he
has been subjected to an impermissible “double enhancement.”
[2] We affirm.
Facts and Procedural History
[3] After a shooting occurred on November 16, 2016, Jones became a suspect, and
officers from the Indianapolis Metropolitan Police Department (“IMPD”)
began surveilling a residence and a truck parked near the residence that was
associated with Jones. On November 22, 2016, IMPD officers observed Jones
getting into the truck, and ordered Jones to exit. Jones then exited the truck
while leaving the door open, which revealed a handgun on the floorboard.
1
Ind. Code § 35-47-4-5.
2
I.C. § 35-50-2-8.
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[4] Jones was arrested, and charged with Attempted Murder and Aggravated
Battery based upon allegations concerning the November 16 shooting. The
State also charged Jones with two counts of SVF; one related to possessing a
gun on November 16, and the other related to possessing the gun in the truck
on November 22. The State further alleged that Jones was a habitual offender.
[5] In September 2017, the Attempted Murder and Aggravated Battery counts were
tried to a jury, which found Jones not guilty. Thereafter, Jones agreed to waive
his right to a jury trial on the remaining allegations, in exchange for dismissal of
the SVF count related to November 16. The court dismissed that count, and,
following a bench trial, determined that Jones (1) was guilty of the remaining
SVF count; and (2) had the status of a habitual offender. The SVF count was
supported by evidence indicating that Jones had a prior conviction for Dealing
in Cocaine. The habitual-offender allegation was supported by evidence
indicating that Jones had a 1991 felony conviction for Burglary and a 1995
felony conviction for Carrying a Handgun Without a License; the latter of
which had been elevated to a felony because of the 1991 conviction. At trial,
Jones argued that these two felonies were not “unrelated” and therefore did not
support an enhancement under the habitual-offender statute.
[6] Following a sentencing hearing, the trial court imposed a sentence of six years
on the SVF count and ordered a twelve-year sentence enhancement. All
eighteen years were to be served in the Indiana Department of Correction.
[7] Jones now appeals.
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Discussion and Decision
[8] This case involves the interplay between two systems addressing recidivism: the
general “habitual offender” statute and “progressive penalty” statutes. Under
the former, an enhanced sentence is available when a defendant qualifies as a
habitual offender. See generally I.C. § 35-50-2-8. Under the latter, “the
seriousness of a particular charge (with a correspondingly more severe sentence)
can be elevated if the person charged has previously been convicted of a
particular offense.” State v. Downey, 770 N.E.2d 794, 796 (Ind. 2002).
[9] To obtain the instant habitual-offender enhancement, the State was obligated to
prove that Jones had “been convicted of two (2) prior unrelated felonies” and
that “at least one (1) of the prior unrelated felonies is not a Level 6 felony or a
Class D felony.” I.C. § 35-50-2-8(b). On appeal, Jones primarily focuses on
whether his predicate offenses were “unrelated.” This is a question of law,
which we review de novo. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).
[10] The habitual offender statute provides, in pertinent part:
A person has accumulated two (2) . . . prior unrelated felony
convictions for the purposes of this section only if:
(1) the second prior unrelated felony conviction was
committed after commission of and sentencing for the first
prior unrelated felony conviction; [and]
(2) the offense for which the state seeks to have the person
sentenced as a habitual offender was committed after
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commission of and sentencing for the second prior
unrelated felony conviction.
I.C. § 35-50-2-8(f). When applying a previous version of the statute, our
supreme court observed that “[t]he phrase ‘unrelated felony’ . . . means the
predicate felony is not part of the res gestae of the principal offense, and that the
second predicate felony was committed after conviction of the first predicate
felony.” Beach v. State, 496 N.E.2d 43, 45 (Ind. 1986) (internal citation
omitted). In this context, res gestae denotes acts that are part of an uninterrupted
transaction. Dye v. State, 984 N.E.2d 625, 629 (Ind. 2013) (“Dye II”).
[11] Here, the State presented evidence that, in 1991, Jones was convicted of
Burglary, as a Class B felony. The State also presented evidence that, in 1995,
Jones was convicted of Carrying a Handgun Without a License, as a Class C
felony—an offense that Jones committed after he was sentenced for the first
felony. Due to a progressive-penalty scheme, the 1995 offense was elevated
from a misdemeanor to a felony because of Jones’s 1991 felony conviction.
Based on this connection between the offenses, Jones argues that the felonies
are not “unrelated,” rendering his enhancement improper.
[12] Our Indiana Supreme Court rejected this line of argument in Beach. That case
involved a burglary committed in 1984. Beach, 496 N.E.2d at 45. The State
sought a habitual-offender enhancement based on (1) a burglary for which the
defendant was sentenced in 1976 and (2) unlawful use of a weapon committed
in 1980, where the offense had been elevated to a felony because of the prior
burglary. Id. at 44-45. The defendant argued that the prior felonies were not
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unrelated because “the first felony conviction cause[d] the second conviction to
be a felony rather than a misdemeanor.” Id. at 44. In resolving the case, the
Beach Court evaluated the “sequence of events” and determined that the
felonies were “clearly” unrelated in the sense contemplated by the statute. Id. at
45. In doing so, the Court “noted a ‘clear intent of the legislature . . . that all
persons who have been convicted of two prior felonies are subject to being
found to be habitual offenders.’” Id. (quoting Woods v. State, 471 N.E.2d 691,
693 (Ind. 1984)); see also Marsillett v. State, 495 N.E.2d 699, 705 (Ind. 1986)
(“The purpose of this enhancement is to penalize more severely those persons
whom prior sanctions have failed to deter from committing felonies.”).
[13] In attempting to distinguish Beach, Jones questions the clarity of the legislature’s
intent based upon developments after the case was decided, and argues that
there is ambiguity in the definition of “unrelated.” Jones cites to Mills v. State,
in which the Indiana Supreme Court identified “an ongoing dialogue between
Indiana’s appellate courts and the Legislature on the general question of when a
court may impose more severe sentences than would otherwise be the case on
criminals because they have proven to be ‘repeat’ or ‘habitual’ offenders.” 868
N.E.2d 446, 448 (Ind. 2007). Yet, years after discussing those developments in
Mills, the Indiana Supreme Court returned to Beach when evaluating the
relatedness of certain offenses. See Beldon v. State, 926 N.E.2d 480, 484 (Ind.
2010) (“We adhere to Beach; the offenses are unrelated.”). Ultimately, Beach
directs our resolution of this issue: the use of one predicate offense to elevate
another does not affect whether the offenses are “unrelated.” Instead, the
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question of whether offenses are “unrelated” involves an evaluation of res gestae
and the sequence of events. See Beach, 868 N.E.2d at 45; Beldon, 926 N.E.2d at
484.3 Thus, Jones has not demonstrated that his enhancement is improper due
to the connection between the predicate offenses or any alleged ambiguity.4
[14] Jones also appears to argue that use of the predicate offenses produced an
impermissible double enhancement. Jones directs us to Mills for the proposition
that “absent explicit legislative direction, a sentence imposed following
conviction under a ‘progressive penalty statute’ may not be increased further
under either the general habitual offender statute or a specialized habitual
offender statute.” 868 N.E.2d at 451. This is the general rule against “double
enhancements,” which remains intact. See Beldon, 926 N.E.2d at 484 (citing
Mills, 868 N.E.2d at 452). In challenging his enhancement, Jones briefly asserts
that “explicit authorization for multiple sentence enhancements under
progressive penalty schemes . . . is lacking in this case.” Appellant’s Br. at 16.
[15] Double-enhancement issues arise when “more than one” type of statutory
system addressing recidivism “is applied to the defendant at the same time.”
3
As to that evaluation, Jones asserts that the “prior burglary conviction was part of the res gestae of the
handgun offense because it was an essential element of the felony” in that it was “one of the ‘things done’ to
elevate the handgun charge to [a] felony.” Appellant’s Br. at 16. Yet, Jones has failed to demonstrate that
any of the pertinent offenses were part of the same uninterrupted transaction. See Dye II, 984 N.E.2d at 629.
4
We note also that in the more than thirty years since Beach was decided—and in the years since Beldon
relied upon Beach—the legislature has not amended the habitual-offender statute in a way undermining our
supreme court’s interpretation of “unrelated.” See Layman v. State, 42 N.E.3d 972, 978 (Ind. 2015) (observing
that a judicial interpretation of a statute, accompanied by legislative inaction for a considerable time, may be
understood to signify the legislature’s acquiescence and agreement with the judicial interpretation).
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See Dye v. State, 972 N.E.2d 853, 857 (Ind. 2012), affirmed on reh’g. In applying
the general rule against double enhancements, we first determine whether the
present conviction was obtained pursuant to a progressive-penalty scheme or a
specialized habitual-offender scheme. Id. at 858. “If not, then there is no
double-enhancement problem.” Id.[16] Here, double-enhancement concerns were implicated in that the SVF statute is
considered a progressive-penalty statute, and Jones received an enhanced
sentence upon his SVF conviction. See Dye, 972 N.E.2d at 858. Yet, in such
instances, there is a double-enhancement problem only if the State used the
same felony to support the SVF conviction and the enhancement. See Mills, 868
N.E.2d at 452; see also Dye II, 984 N.E.2d at 630 (“[A] person convicted of
unlawful possession of a firearm by a serious violent felon may not have his or
her sentence enhanced under the general habitual offender statute by proof of
the same felony used to establish that the person was a serious violent felon.”).
That is not what happened here, and Jones has failed to articulate how the
enhancement of his conviction constituted an improper double enhancement.
[17] However, to the extent that Jones is arguing that an enhancement cannot rely
upon a predicate felony that was itself elevated, our legislature has provided as
follows: “a prior unrelated felony conviction may be used to support a habitual
offender determination even if the sentence for the prior unrelated offense was
enhanced for any reason, including an enhancement because the person had
been convicted of another offense.” I.C. § 35-50-2-8(e). In Olatunji v. State, this
Court determined that this language clarified “the legislature’s original intent”
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that “a misdemeanor enhanced to a felony . . . may itself serve as a predicate
habitual offender felony.” 788 N.E.2d 1268, 1272 (Ind. Ct. App. 2003), trans.
denied. The Court also noted that the concern with double enhancement relates
to the enhancement of a present conviction, and that the “concern has never
been applied to a situation where a predicate habitual offender felony was itself
enhanced for whatever reason.” Id. at 1273.
[18] Ultimately, we are not persuaded that the enhancement is improper.
[19] Affirmed.
Mathias, J., and Bradford, J., concur.
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