Mark A. Petry v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Sep 19 2019, 6:00 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Mark A. Petry Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark A. Petry, September 19, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-668
v. Appeal from the
Pike Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff Jeffrey L. Biesterveld, Judge
Trial Court Cause No.
63C01-1201-FB-29
Vaidik, Chief Judge.
[1] Following a 2013 jury trial, Mark A. Petry was convicted of Count I: Class B
felony criminal deviate conduct, Count II: Class D felony sexual battery, and
Court of Appeals of Indiana | Memorandum Decision 19A-CR-668 | September 19, 2019 Page 1 of 3
Count III: Class D felony criminal confinement. Petry then admitted that he is
a habitual offender based on earlier felony convictions (Count IV). The trial
court sentenced Petry to 20 years for Count I, 3 years each for Counts II and
III, and 25 years for Count IV. The court ordered the sentences for Counts I-III
to be served concurrently and the sentence for Count IV to “be served
consecutive to Counts I, II and III.” Appellant’s App. Vol. II p. 50.
[2] In 2019, Petry filed a motion to correct erroneous sentence alleging that “the
imposition of the habitual offender enhancement, as a separate count,
constitutes an erroneous sentence which requires correction.” Id. at 54. Petry
didn’t ask to be resentenced; instead, he asked for the habitual-offender
enhancement to be vacated altogether. The State filed a motion to dismiss,
which the trial court granted.
[3] Petry now appeals, repeating the arguments he made below. It is error for a
trial court to impose a habitual-offender enhancement as a separate sentence.
See Howard v. State, 873 N.E.2d 685, 691 (Ind. Ct. App. 2007). But that is what
the trial court did here. See Appellant’s App. Vol. II p. 50 (“The sentence for
Count IV, the Habitual Offender Enhancement, shall be served consecutive to
Counts I, II and III.”). As the State notes, the proper remedy in this situation is
“well-settled,” that is, “[w]here a trial court improperly runs a habitual offender
enhancement as a separate consecutive penalty, the case must be remanded to
the trial court with instructions to enter a sentencing order that reflects that the
enhancement is not a separate conviction.” Appellee’s Br. p. 13 (citing Edwards
v. State, 479 N.E.2d 541, 548 (Ind. 1985)). We therefore reverse the trial court’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-668 | September 19, 2019 Page 2 of 3
dismissal of Petry’s motion to correct erroneous sentence and remand this case
with instructions for the trial court to sentence Petry on Count I to 45 years (20
years enhanced by 25 years for being a habitual offender). As for Petry’s
argument that the remedy should be to vacate his habitual-offender
enhancement, we decline to do so given our Supreme Court’s longstanding
remedy of remanding the case to the trial court for a new sentencing order.
[4] Reversed and remanded.
Riley, J., and Bradford, J., concur.
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