Ian F. Creamer v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
FILED
any court except for the purpose of Nov 30 2020, 11:45 am
establishing the defense of res judicata, CLERK
Indiana Supreme Court
collateral estoppel, or the law of the Court of Appeals
and Tax Court
case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
Jesse R. Drum
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ian F. Creamer, November 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1192
v. Appeal from the Tippecanoe Superior
Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff. Judge
Trial Court Cause No.
79D01-2001-F2-3
Brown, Judge.
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[1] Ian F. Creamer appeals the trial court’s sentencing order and requests remand
for a new sentencing hearing. We remand with instructions that the trial court
attach Creamer’s habitual offender enhancement to his sentence for possession
of methamphetamine as a level 3 felony.
Facts and Procedural History
[2] On January 23, 2020, Creamer knowingly or intentionally possessed
methamphetamine weighing at least twenty-eight grams and altered, damaged,
or removed the methamphetamine with the intent to prevent it from being used
as evidence. On January 24, 2020, the State charged him with: Count I, dealing
in methamphetamine as a level 2 felony; Count II, possession of
methamphetamine as a level 3 felony; and Count III, obstruction of justice as a
level 6 felony. The State also filed an information alleging Creamer was an
habitual offender. On April 22, 2020, Creamer pled guilty pursuant to a plea
agreement to possession of methamphetamine as a level 3 felony under Count
II and obstruction of justice as a level 6 felony under Count III and admitted to
being an habitual offender.
[3] On May 21, 2020, the trial court sentenced Creamer to twelve years for
possession of methamphetamine as a level 3 felony under Count II and two
years for obstruction of justice as a level 6 felony under Count III. The court’s
written sentencing order states “that the defendant be, and he hereby is,
sentenced for a period of six (6) years for the Habitual Offender sentencing
enhancement,” that “said sentences for Count II and III are concurrent to each
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other and the Habitual Offender Enhancement is consecutive to Count II and
III for a total sentence of eighteen (18) years” and that “[t]he defendant shall
execute fourteen (14) years; twelve (12) years at the Indiana Department of
Correction and two (2) years with Tippecanoe County Community
Corrections.” Appellant’s Appendix Volume II at 21-22. At sentencing, the
court stated: “12 years Count II, 2 years Count III, concurrent. 6 years Count
IV consecutive for a total of 18 years. 14 executed, 12 years DOC, 2 years
Community Corrections, 4 years to supervised probation.” Transcript Volume
II at 27.
Discussion
[4] Creamer argues the trial court erred in ordering that the habitual offender
enhancement be served consecutive to his sentences on Counts II and III. He
notes the habitual offender status is not a separate crime and does not result in a
consecutive sentence and the trial court did not specify which felony count was
enhanced. He requests remand for a new sentencing hearing.
[5] The State agrees this Court should remand for an amended sentencing order
and argues that Creamer is not entitled to a new sentencing hearing and the trial
court “can fix the problem by amending the sentencing order to show that
Creamer’s sentence for possession of methamphetamine is enhanced by six
years.” Appellee’s Brief at 6.
[6] In his reply brief, Creamer argues that “the potential sentence for the habitual
offender finding” would be different if the enhancement were applied to his
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level 6 felony conviction rather than his level 3 felony conviction and that,
“whether labeled as a new sentencing hearing [or] not, . . . some additional
proceeding is required to determine which felony conviction the trial court is
enhancing.” Appellant’s Reply Brief at 3-4.
[7] As amended effective July 1, 2014, Ind. Code § 35-50-2-8 provides in part:
Habitual offender is a status that results in an enhanced sentence.
It is not a separate crime and does not result in a consecutive
sentence. The court shall attach the habitual offender enhancement to
the felony conviction with the highest sentence imposed and specify which
felony count is being enhanced. If the felony enhanced by the habitual
offender determination is set aside or vacated, the court shall
resentence the person and apply the habitual offender
enhancement to the felony conviction with the next highest
sentence in the underlying cause, if any.
(Emphasis added). It is well-settled that an habitual offender finding does not
constitute a separate crime nor result in a separate sentence, but rather results in
a sentence enhancement imposed upon the conviction of a subsequent felony.
Weekly v. State, 105 N.E.3d 1133, 1139 (Ind. Ct. App. 2018) (citations omitted),
trans. denied. An habitual offender enhancement “must be attached to a single
conviction.” State v. Arnold, 27 N.E.3d 315, 321 (Ind. Ct. App. 2015), reh’g
denied, trans. denied.
[8] Accordingly, we remand with instructions that the trial court attach Creamer’s
habitual offender enhancement of six years to his sentence for possession of
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methamphetamine as a level 3 felony under Count II and enter an amended
sentencing order. 1
[9] Remanded.
Robb, J., and Crone, J., concur.
1
This will not impact the length of Creamer’s aggregate sentence.
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