Darryl L. Calvin v. State of Indiana (mem. dec.) , 2017 Ind. App. LEXIS 304 ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 27 2017, 8:36 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Stephen Miller Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darryl L. Calvin, June 27, 2017
Appellant-Defendant, Court of Appeals Case No.
02A03-1701-CR-93
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable John F. Surbeck,
Appellee-Plaintiff. Jr., Judge
Trial Court Cause No.
02D06-1604-F4-30
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Darryl L. Calvin (Calvin), appeals his conviction for
burglary, a Level 4 felony, Ind. Code § 35-43-2-1; and his adjudication as an
habitual offender, I.C. § 35-50-2-8(a).
[2] We affirm.
ISSUE
[3] Calvin raises one issue for our review, which we restate as: Whether the State
presented sufficient evidence beyond a reasonable doubt to support his
adjudication as an habitual offender.
FACTS AND PROCEDURAL HISTORY
[4] On April 7, 2016, the State charged Calvin with a Level 4 felony burglary. On
August 19, 2016, the State filed a notice of intention to seek an habitual
offender enhancement, alleging that Calvin had two prior unrelated Class 1
felony residential burglary convictions from the State of Illinois. On November
29 through November 30, 2016, the trial court conducted a bifurcated jury trial.
At the conclusion of the evidence, the jury found Calvin guilty of the burglary
charge. During the bifurcated hearing, the State presented evidence establishing
that Calvin had been convicted in Illinois on December 30, 1992, of two Counts
of Class 1 felony residential burglary and one Count of Class 2 felony attempted
residential burglary. Calvin had also been convicted in Illinois on October 13,
1999, of one Count of Class 1 felony residential burglary. At the close of the
hearing, the jury returned a guilty verdict on the habitual offender charge. On
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December 16, 2016, the trial court, finding no mitigating circumstances,
imposed a six-year sentence on the burglary charge, enhanced by ten years for
the habitual offender adjudication, for an aggregate sentence of sixteen years.
[5] Calvin now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[6] Calvin contends that the State presented insufficient evidence establishing that
at least one of Calvin’s two prior unrelated felonies for purposes of the habitual
offender statute is not a Level 6 felony or a Class D felony.
[7] Our standard of review in claims of insufficient evidence is well settled: we
neither reweigh the evidence nor judge the credibility of the witnesses, and we
consider only the evidence most favorable to the verdict and the reasonable
inferences that can be drawn from this evidence. Knight v. State, 42 N.E.3d 990,
993 (Ind. Ct. App. 2015). We will not disturb the jury’s verdict if substantial
evidence of probative value supports it. Id. As an appellate court, we respect
the jury’s exclusive province to weigh conflicting evidence. Id.
[8] The habitual offender statute provides, in relevant part, that
A person convicted of murder or of a Level 1 through Level 4
felony is a habitual offender if the state proves beyond a
reasonable doubt that:
(1) the person has been convicted of two (2) prior unrelated
felonies; and
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(2) 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).
For purposes of the habitual offender statute, a Level 6 felony conviction means
“a conviction, in any other jurisdiction at any time, with respect to which the
convicted person might have been imprisoned for more than one (1) year.” I.C.
§ 35-50-2-1(a)(2).
[9] To support its habitual offender enhancement, the State presented evidence that
Calvin had been previously convicted in the State of Illinois. On December 30,
1992, Calvin was convicted of a Class 1 felony residential burglary for which he
received a thirteen-year sentence, and on October 13, 1999, Calvin was found
guilty of a Class 1 felony residential burglary and received a twenty-eight-year
sentence.
[10] Calvin does not dispute the existence or application of the two Illinois
convictions as predicates for the habitual offender enhancement; rather, Calvin
contends that the State, by merely establishing that he had been imprisoned in
both previous convictions for more than one year, only showed that both prior
convictions were Level 6 felonies for purposes of the Indiana habitual offender
statute. As such, Calvin maintains, the State failed its burden that “at least one
of the prior unrelated felonies is not a Level 6 felony or a Class D felony.” See
I.C. § 35-50-2-8(b).
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[11] We agree that pursuant to I.C. § 35-50-2-8(b), both of Calvin’s Illinois’
convictions are considered Level 6 or Class D felonies for habitual offender
purposes because they are convictions from a court other than an Indiana court
for which Calvin has been sentence to more than one year. However, as
pointed out by the State, ending our evaluation there would lead to absurd
results: “[u]nder [Calvin’s] argument, crimes of any level, including the most
serious of crimes such as murder and rape, are treated as though they are of the
lowest level of felony offenses simply because they occurred across the state
line.” (Appellee’s Br. p. 14). Thus, by qualifying every out-of-state conviction
at the highest as a Level 6 felony, an out-of-state criminal history is rendered
meaningless for purposes of the habitual offender schedule. As such, out-of-
state offenders would be treated substantially more favorable than in-state
offenders. Accordingly, the Legislature could not have intended to treat all
foreign convictions with a sentence of more than one year as a Level 6 felony.
Glotzbach v. State, 783 N.E.2d 1221, 1227 (Ind. Ct. App. 2003) (the Legislature
is presumed to have intended that the language used in the statute is applied
logically and not bring about an unjust or absurd result).
[12] In recent years, the habitual offender statute has undergone some significant
amendments. See Johnson v. State, --- N.E.3d ---- (Ind. Ct. App. Apr. 19, 2017)
(petition for transfer pending). Throughout these changes, the Legislature’s
visible policy turned on two prongs: (1) reducing the impact of prior offenses of
lower rank, and (2) reducing the impact of convictions entered quite some years
ago. Id. “Put another way, the general thrust is that individuals who
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committed lesser offenses and then stayed clean for long periods do not face
enhancements of the same severity as under habitual statutes in their earlier
form.” Id. Because the habitual offender statute differentiates the level of
enhancement based on the seriousness of the offender’s prior offenses, the
Legislature cannot have intended to treat all foreign convictions at a single,
lowest level for Indiana’s habitual offender purposes.
[13] In several other criminal statutes, the Indiana Legislature has treated out-of-
state offenses similar to their Indiana counterparts when the crimes are
equivalent. See, e.g., I.C. § 7.1-1-3-13.5 (conviction for operating while
intoxicated); I.C. § 35-42-2-1.3(b)(1)(B) (defining a domestic battery as a Level 6
felony); I.C. § 35-47-4-5(a)(1)(B) (defining serious violent felon). Continuing
this comparison policy, we note that residential burglary under the Indiana and
Illinois statutory schemes are equivalent crimes. Specifically, in Indiana
burglary is defined as “a person who breaks and enters the building or structure
of another person, with intent to commit a felony or theft in it, commits
burglary, a Level 5 felony.” I.C. § 35-43-2-1. The offense becomes a Level 4
felony if the building or structure is a dwelling. I.C. § 35-43-2-1(1). Illinois
defines residential burglary as “when he or she knowingly and without
authority enters or knowingly and without authority remains within the
dwelling place of another, or any part thereof, with the intent to commit therein
a felony or theft.” 720 ILCS 5/19-3(a).
[14] Comparing Illinois’ residential burglary statute and its possible sentence with
Indiana’s felony sentencing scheme qualifies Illinois’ residential burglary as
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greater than a Level 6 felony conviction. Residential burglary is categorized as
a Class 1 felony in the state of Illinois. 720 ILCS 5/19-3(b). The sentence of a
Class 1 felony “shall be a determinate sentence of not less than 4 years and not
more than 15 years.” 730 ILCS 5/5-4.5-30(a). The sentence of imprisonment
“for an extended term Class 1 felony [] shall be a term not less than 15 years
and not more than 30 years.” 730 ILCS 5/5-4.5-30(a). Therefore, the sentence
for a Class 1 felony residential burglary is greater than the maximum sentence
for an Indiana Level 6 felony conviction and more in line with a sentence for an
Indiana Level 4 felony conviction. See I.C. § 35-50-2-7(b) (sentence for Level 6
felony convictions is between six months and two-and-one-half years); I.C. §
35-50-2-5.5 (a Level 4 felony incurs imprisonment for a fixed term of between
two and twelve years).
[15] Accordingly, a comparison of the Illinois residential burglary statute and the
Indiana Level 4 burglary establishes that both offenses are equivalent in
statutory elements and sentencing. As it is clear that Calvin’s predicate offenses
for the habitual offender enhancement are more similar to a Level 4 felony than
a Level 6 felony, “at least one of the prior unrelated felonies is not a Level 6
felony or a Class D felony.” See I.C. § 35-50-2-8(b). Therefore, we conclude
that the State presented sufficient evidence to support Calvin’s habitual offender
enhancement.
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CONCLUSION
[16] Based on the foregoing, we conclude that the State presented sufficient evidence
beyond a reasonable doubt to support Calvin’s adjudication as an habitual
offender.
[17] Affirmed.
[18] Najam, J. and Bradford, J. concur
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