John W. Light v. State of Indiana

Apr 07 2015, 5:57 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Romy N. Elswerky Gregory F. Zoeller
Gibson Law Office Attorney General of Indiana
Lafayette, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John W. Light, April 7, 2015
Appellant-Defendant, Court of Appeals Cause No.
79A02-1409-CR-637
v. Appeal from the Tippecanoe Superior
Court.
State of Indiana, The Honorable Randy J. Williams,
Judge.
Appellee-Plaintiff.
Cause No. 79D01-1403-FC-12
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, John W. Light (Light), appeals his sentence following an
open plea, in which he pled guilty to Count I, operating a motor vehicle while
privileges are forfeited for life, a Class C felony, Ind. Code § 9-30-10-17 (2013);
Count II, operating a vehicle while intoxicated, a Class A misdemeanor, I.C. §
9-30-5-2; and his adjudication as a habitual substance offender, I.C. § 35-50-2-
10(b)1.
[2] We affirm.
ISSUE
[3] Light raises one issue on appeal, which we restate as follows: Whether the trial
court erred when it ordered Light’s conviction for operating a motor vehicle
while privileges are forfeited for life to be served consecutively to his habitual
substance offender sentence enhancement, attached to his Class A
misdemeanor conviction.
FACTS AND PROCEDURAL HISTORY
[4] On October 18, 2013, the State filed an Information charging Light with Count
I, operating a motor vehicle while privileges are forfeited for life, a Class C
felony, I.C. § 9-30-10-17 (2013); and Count II, operating a vehicle while
intoxicated, a Class A misdemeanor, I.C. § 9-30-5-2. On December 17, 2013,
1
This statute was repealed by P.L. 158-2013, § 664, eff. July 1, 2014.
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the State filed an amendment to the Information, adding a habitual substance
offender charge. On July 14, 2014, Light pled guilty to all charges in an open
plea. On August 14, 2014, the trial court imposed an executed six years
sentence for Class C felony operating while forfeited for life, and an executed
one-year sentence on the Class A misdemeanor operating a vehicle while
intoxicated. The trial court enhanced the Class A misdemeanor by six-years for
the habitual substance offender (HSO) adjudication, with three years executed
and three years suspended. The trial court ordered the sentences to run
consecutively, for an aggregate sentence of thirteen years.
[5] Light now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[6] Light contends that the trial court erred by ordering his conviction for operating
a motor vehicle while privileges are forfeited for life and his HSO sentence
enhancement, attached to his Class A misdemeanor conviction, to be served
consecutively. He maintains that the imposition of the consecutive sentences of
the HSO enhancement with his sentence for operating a vehicle for life
constitutes an impermissible double enhancement.
[7] Indiana courts have previously discussed the ways in which the Legislature has
dealt with individuals who have proven to be repeat or habitual criminals. The
first type, the general habitual offender statute, I.C. § 35-50-2-8 (2013), provides
that a person convicted of three felonies of any kind are classed as “habitual
offenders.” Beldon v. State, 935 N.E.2d 480, 482 (Ind. 2010). Habitual offenders
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are subject to an additional term of years beyond that imposed for the
underlying felony. Id. The second type, specialized habitual offender statutes,
applies where the predicate underlying offenses are of a common type. Id.Examples are found in I.C. § 9-30-10-4 (2013), which subjects habitual traffic
violators to an additional term of years beyond that imposed for the underlying
traffic offense, and the statute at issue in this case, I.C. § 35-50-2-10 (2013),
which applies to habitual substance offenders. Id. The third and final type, the
progressive penalty statutes, is even more specialized. Id. “Under this type, 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.” Id. (quoting State v. Downey, 770 N.E.2d 794, 795 (Ind.
2002)). Examples of progressive penalty statutes include the statute at issue
here, I.C. § 9-30-10-17.
[8] Light pled guilty to a Class C felony, operating a motor vehicle while privileges
are forfeited for life, based on the same underlying conviction in Cause No.
79E01-0006-DF-190 (Cause DF-190) of March 11, 2002, as well as a Class A
misdemeanor conviction with an HSO enhancement. “A person is a HSO if
the individual has accumulated at least two prior unrelated substance offense
convictions. See I.C. § 35-50-2-10(b). According to the charging Information,
Light’s HSO enhancement is predicated on three prior unrelated substance
offenses: (1) Cause DF-190, operating while intoxicated, on March 11, 2002;
(2) Cause No. 12D01-9410-CF-89 (Cause CF-89), operating while intoxicated,
on September 30, 1995; and (3) and Cause No. 12D01-9301-CM-32 (Cause
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CM-32), operating while intoxicated, on May 10, 1993. Accordingly, only the
progressive penalty statute and the specialized habitual offender statute are
implicated in this case.
[9] As a general rule, “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.” Beldon, 926 N.E.2d at 483. Although Beldon further
holds that “the requisite legislative direction exists to authorize an underlying
elevated conviction to be enhanced by an HSO enhancement, even if the same
prior conviction was used to support both enhancements, we need not go there
as the trial court did not attach the HSO enhancement to Light’s Class C
progressive penalty conviction, but rather to his conviction for the Class A
misdemeanor conviction, operating a vehicle while intoxicated. Id. at 484.
[10] Thus, the only issue before us is whether it is permissible to run the HSO
enhanced sentence consecutively to the sentence for operating while forfeited
for life, which was itself already enhanced under a progressive penalty statute.
In Sweatt v. State, 887 N.E.2d 81, 84 (Ind. 2008), the defendant’s sexually
violent felon (SVF) conviction and his status as a habitual offender were both
based on the same prior rape conviction. The habitual offender enhancement
was applied to the defendant’s conviction for burglary, not his SVF conviction.
Id. Our supreme court held that this “d[id] not . . . create a double
enhancement” because the prior rape conviction supported enhancements that
operated on separate counts. Id. at 84. However, the court held that “where
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separated counts are enhanced based on the same prior felony conviction,
ordering the sentences to run consecutively has the same effect as if the
enhancements both applied to the same count.” Id.[11] Although the trial court seemingly relied on the same Cause DF-190 to support
both enhancements, we note that the underlying predicate offense arising out of
Cause DF-190 is different for each enhancement. For the Class C felony
enhancement, the predicate offense is operating a motor vehicle after driving
privileges are forfeited for life, while the predicate offense for the HSO
enhancement is a conviction for operating while intoxicated with a prior
conviction.2 Nevertheless, the State was merely required to establish two prior
unrelated substance offenses for the HSO enhancement. Thus, even though the
State established three such offenses to sustain a valid HSO enhancement, it
needed only two. Consequently, Cause DF-190 was entirely unnecessary to
support Light’s HSO enhancement. Unlike Sweatt, Light’s two enhancements
were not based on the same prior felony convictions: his Class C felony
enhancement is based on the underlying Cause DF-190; while his HSO
enhancement is based on the underlying Cause CF-89 and Cause CM-32. See
Brock v. State, 983 N.E.2d 636, 642 (Ind. Ct. App. 2013), reh’g denied (when two
separate enhancements are not based on the same prior felony conviction,
2
In Dye v. State, 984 N.E.2d 625, 629 (Ind. 2013), our supreme court expanded the doctrine to hold that
when two felonies arise out of the same conviction, which are unrelated and not part of the same res gestae,
then each felony is independently viewed and not considered the same prior conviction for purposes of
enhancement. However, today we need not analyze whether the two felonies arising out of Cause DF-190
meet these requirements as we affirm the trial court on a different ground.
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Sweatt is not controlling and the trial court’s imposition of consecutive
sentences is not an improper double enhancement). We therefore conclude that
the trial court’s imposition of consecutive sentences does not constitute an
improper double enhancement under the facts and circumstances of the present
case.
CONCLUSION
[12] Based on the foregoing, we hold that the trial court properly ordered Light’s
sentences to run consecutively.
[13] Affirmed.
[14] Baker, J. concurs
[15] Vaidik, C. J. concurs in result
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