Johnson v. State

STATON, Judge.

Andre Dewayne Johnson appeals from a conviction for four counts of fraud and one of attempted fraud, raising the sole issue of whether his sentence on one of the fraud counts was properly enhanced by Indiana Code 35-50-2-8 (1988), the habitual offender statute.

We affirm.

Johnson was convicted of four counts of fraud and one count of attempted fraud, all Class D felonies, for using or attempting to use a stolen credit card on April 10 and 11 of 1990. He received a sentence of three years for each of the offenses, all but one to run consecutively, for a sentence of twelve years. In addition, the trial judge enhanced his sentence on one of the counts of fraud for another twelve years pursuant to the habitual offender statute, Indiana Code 35-50-2-8 (1988), for a total sentence of twenty-four years. The enhancement was based upon two Class D felony thefts which were committed before September 1, 1985. On appeal, Johnson challenges the use of Indiana Code 35-50-2-8 as improper.

Prior to 1985, offenders with multiple felony convictions were sentenced as habitual offenders with no distinction made for the class of felony upon which the enhancement was based. IC 35-50-2-8. This habitual offender statute contains a presumptive enhancement of 30 years. In 1985, the legislature enacted Indiana Code 35-50-2-7.1, the habitual Class D felony offender statute, which provided a presumptive enhancement of eight years if the offender’s prior felonies, as well as the enhanced felony, were Class D felonies. In addition, the legislature added subsection (h) to Indiana Code 35-50-2-8, which made it inapplicable to D felony recidivists.

The enacting legislation also contained the following savings clause:

SECTION 3. (a) The addition of IC 35-50-2-7.1 and the amendment of IC 35-50-2-8 by this act do not affect any:

(1) rights or liabilities accrued;

(2) penalties incurred; or

(3) proceedings begun;

before September 1, 1985. The rights, liabilities, and proceedings are continued and punishments, penalties, or forfeitures shall be imposed and énforced under IC 35-50-2-8 as if this act had not been enacted.

(b) If all of the felonies that are relied upon for sentencing a person as an habitual offender under IC 35-50-2-8 are felonies that were committed before September 1, 1985, the felonies shall be prosecuted and remain punishable under IC 35-50-2-8 as if this act had not been enacted.

The trial judge relied upon this savings clause in enhancing Johnson’s sentence under Indiana Code 35-50-2-8.

Johnson argues on appeal that he was incorrectly sentenced under section 8, as the term “all” in the savings clause refers to the enhanced felony as well as the prior felonies. Stated otherwise, Johnson argues that under the language of the savings clause, both the enhanced Class D felony and the prior Class D felonies must have been committed before September 1, 1985 in order for him to be sentenced under section 8. In support of his argument he cites Jones v. State (1991), Ind.App., 569 N.E.2d 975.

In Jones, a 2-1 decision, the offender had two prior Class D felonies committed before September 1, 1985, while the enhanced felony was committed after that date. In a 2-1 decision, our Second District held that the habitual Class D felony offender statute applied, rather than Indiana Code 35-50-2-8. The majority expressly declined to follow our decision in Moncrief v. State (1988), Ind.App., 525 N.E.2d 1286, which was cited by Judge Hoffman in the dissent. The majority concluded that the word “all” as used in the savings clause meant that the enhanced felony, as well as the prior felonies, had to have been committed before September 1, 1985 in order for the original habitual offender statute to apply.

In Moncrief, we stated, “we cannot convict a defendant of being an Habitual Class D Felony Offender under I.C. 35-50-2-7.1 if the prior felonies relied upon for that conviction were committed before September 1, 1985.” Id. at 1290 (emphasis added). Moncrief s enhanced felony was committed in 1986.

While the Jones majority’s extensive analysis concluded that the legislature intended the enhanced felony be committed before September of 1985 in order for the prior statute to be applicable, we believe that the analysis employed in that case omitted some important rules of statutory construction.

We will not presume that the legislature intended to enact a statute that is a nullity or has useless or ineffectual provisions. State ex rel. Hatcher v. Lake Superior Court (1986), Ind., 500 N.E.2d 737, 739; Northern Indiana Bank and Trust Co. v. State Board of Finance (1983), Ind., 457 N.E.2d 527, 532; Sharton v. Slack (1982), Ind.App., 433 N.E.2d 856, 859, transfer denied. Consequently, we avoid a construction of a statute which would render that statute meaningless. Hatcher, supra, at 740. Moreover, when a question arises as to the applicability of criminal statutes, we apply the law in effect at the time the crime is committed. Parsley v. State (1980), 273 Ind. 46, 401 N.E.2d 1360, 1362, cert. denied 449 U.S. 862, 101 S.Ct. 166, 66 L.Ed.2d 79. The time of the crime is selected as an act of free will of the offender, and penal consequences are frozen as of that event. Id.

Applying these rules of construction to the savings clause in the habitual offender statute, we deem it unwise to follow Jones. If the enhanced felony, as well as the prior felonies, were committed before September 1, 1985, then the applicable law would be the law in effect on the date that the enhanced felony was committed. As the Habitual Class D Felony Offender statute became effective on September 1, 1985,¹ the original habitual offender statute would be controlling. Thus, under the Jones construction of the savings clause, it would not “save” anything. That the savings clause was intended to “save” something is clear — if the conditions precedent are fulfilled, “the felonies shall be prosecuted and remain punishable under IC 35-50-2-8 as if this act had not been enacted.” Implicit is the view that the new act, in changing the law, would result in some crimes being treated differently if the savings clause had not been made a part of the new act. Logically, the only crimes which could be treated differently by the act are those which were committed after its effective date, September 1, 1985.

The inescapable conclusion is that the word “all” in the savings clause refers to the offender’s prior felonies, not the prior felonies and the enhanced felony. That is what the clause was intended to save — offenders would be punished under the earlier law if their prior felonies had been committed while that law was in effect. To construe the savings clause as the Jones majority did would render it meaningless. Accordingly, we decline to follow the Jones decision and reaffirm our statement in Moncrief that Indiana Code 35-50-2-8 is applicable when all of an offender’s prior Class D felonies were committed before September 1, 1985, regardless of whether the enhanced felony was committed before that date.

As both of Johnson’s prior Class D felonies were committed before September 1, 1985, the trial court correctly ruled that Indiana Code 35-50-2-8 was the applicable habitual offender statute.² The trial court’s enhancement of the fraud conviction by twelve years pursuant to Indiana Code 35-50-2-8 is hereby affirmed.

GARRARD, J., concurs. BUCHANAN, J., dissents and files separate opinion.

1 . IC 1 — 1—3—3 (1985). Note that Indiana Code 1-1-3-3 was amended by P.L. 1-1987 to provide that unless a different time is specified in the act, the act would become effective on July 1 of that year, rather than September 1.

2 . Johnson has apparently received considerable mileage on both his prior convictions and challenges to the habitual offender statutes. In an unpublished memorandum decision, this court reversed the enhancement of his sentence pursuant to IC 35-50-2-7.1 based upon an argument similar to that made by the State in the present case. Johnson v. State (April 19, 1989), Ind.App., No. 71A03-8812-CR-00380; Record, pp. 643-646.