Steven Clear v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 21 2018, 9:03 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Curtis T. Hill, Jr.
Wieneke Law Office, LLC Attorney General of Indiana
Brooklyn, Indiana J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven Clear, December 21, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1561
v. Appeal from the Shelby Superior
Court
State of Indiana, The Honorable David N. Riggins,
Appellee-Plaintiff. Judge
Trial Court Cause No.
73D02-1603-F6-114
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018 Page 1 of 4
[1] Steven Clear appeals his sentence for being an habitual vehicular substance
offender. We remand.
Facts and Procedural History
[2] On March 28, 2016, the State charged Clear with: Count I, operating while
intoxicated as a class A misdemeanor; Count II, operating while intoxicated as
a level 6 felony; and Count III, driving while suspended as a class A
misdemeanor. The State later charged Clear with: Count IV, operating a
vehicle with an alcohol concentration equivalent to at least 0.15 grams of
alcohol per 210 liters of breath or 100 milliliters of blood; Count V, operating a
vehicle while intoxicated as a level 5 felony; and Count VI, being an habitual
vehicular substance offender.
[3] On April 19, 2018, the court held a bench trial. The court’s sentencing order
states that it entered judgment of conviction for Count III, driving while
suspended as a class A misdemeanor; Count V, operating a vehicle while
intoxicated as a level 5 felony; and Count VI, being an habitual vehicular
substance offender. The court found that Count II merged into Count V and
that Count V supersedes Count I. The court’s order sentenced Clear to thirty-
four days for Count III, five years for Count V, and six years for Count VI with
all sentences served consecutively to each other and to the sentences under
cause numbers 03D02-1801-F6-55 and 03D02-1805-CM-999. In its abstract of
judgment, the court listed Counts III, V, and VI as separate counts with the
separate sentences imposed.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018 Page 2 of 4
Discussion
[4] Clear argues that Ind. Code § 9-30-15.5-2(d) directs the trial court to sentence a
defendant found to be an habitual vehicular substance offender to an additional
term of imprisonment which is added to the term of imprisonment imposed for
the underlying felony. He asserts that the trial court treated the habitual
vehicular substance offender enhancement as a separate offense with a separate
sentence and that remand is appropriate. The State agrees that to the extent
there is any confusion about whether the enhancement was entered as a
standalone sentence for a separate offense, instead of being entered as an
enhancement in relation to the underlying offense, this Court should remand
for the trial court to clarify that the enhancement renders the sentence for Count
V to be eleven years.
[5] Ind. Code § 9-30-15.5-2(d) provides: “The court shall sentence a person found
to be a habitual vehicular substance offender to an additional fixed term of at
least one (1) year but not more than eight (8) years of imprisonment, to be added
to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.”
(Emphasis added).
[6] Recently, in Weekly v. State, 105 N.E.3d 1133, 1139 (Ind. Ct. App. 2018), trans.
denied, we explained that the “to be added” language in this statute is equivalent
to the “attach” language in Indiana’s habitual offender statute, which provides,
in relevant 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
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018 Page 3 of 4
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.
Ind. Code § 35-50-2-8(j) (emphasis added). “[I]t is well-settled that ‘“[a]
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, 105 N.E.3d at 1139 (quoting
Kilgore v. State, 922 N.E.2d 114, 120 (Ind. Ct. App. 2010) (quoting Greer v. State,
680 N.E.2d 526, 527 (Ind. 1997)), trans. denied).
[7] Pursuant to Ind. Code § 9-30-15.5-2, we remand with instructions that the trial
court vacate the separate sentence on the habitual vehicular substance offender
finding and attach the enhancement to Clear’s sentence for operating a vehicle
while intoxicated as a level 5 felony under Count V and amend the sentencing
order and abstract of judgment accordingly. See Weekly, 105 N.E.3d at 1139
(holding that the trial court erred when it ordered the defendant’s habitual
substance offender sentence to run as a separate, consecutive sentence and
remanding for resentencing).
Conclusion
[8] For the foregoing reasons, we remand for entry of an amended sentencing order
and abstract of judgment.
[9] Remanded.
Bailey, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1561 | December 21, 2018 Page 4 of 4