Arnold Tuell v. State of Indiana

FILED
Jan 15 2019, 8:55 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark A. Kiesler Curtis T. Hill, Jr.
Kiesler Law Office Attorney General of Indiana
New Albany, Indiana Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Arnold Tuell, January 15, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1186
v. Appeal from the
Orange Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Steven L. Owen, Judge
Trial Court Cause No.
59C01-1711-F5-1259
Kirsch, Judge
Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019 Page 1 of 10
[1] Arnold Tuell (“Tuell”) was charged with operating a motor vehicle after
forfeiture of license for life,1 a Level 5 felony, and with being a habitual
offender.2 Tuell raises the following issue in this discretionary interlocutory
appeal, whether the trial court erred in denying his motion to dismiss the
habitual offender charge, which he claims is impermissible because operating a
motor vehicle after forfeiture of license for life is a progressive penalty statute
that cannot be further enhanced by the general habitual offender statute.
[2] We affirm.
Facts and Procedural History
[3] On the evening of November 25, 2017, Indiana State Police Trooper Noah
Ewing (“Trooper Ewing”) was driving on State Road 56 and decided to run the
plate of the vehicle in front of him. Appellant’s App. Vol. II at 10. He learned
that Bureau of Motor Vehicle (“BMV”) records indicated that the registered
owner, Tuell, was a habitual traffic violator for life. Id. As Trooper Ewing
drove closer to the vehicle, he noticed that the driver was a male with dark hair,
which matched information from the BMV records. Id. Trooper Ewing
activated his emergency lights, and the vehicle stopped. As Trooper Ewing
approached the vehicle, he noticed that the driver looked to be the same person
depicted in Tuell’s BMV photo. Id. Tuell admitted to Trooper Ewing that 1)
1
See Ind. Code §§ 9-30-10-16, -17.
2
See Ind. Code § 35-50-2-8.
Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019 Page 2 of 10
the car was his, 2) that he did not have a license, and 3) that he was a habitual
traffic violator. Id.
[4] Tuell was arrested and charged with Count 1, Level 5 felony operating a motor
vehicle after forfeiture of license for life and Count 2, with being a habitual
offender. Id. at 22. The habitual offender charging information listed the
following prior convictions: 1) January 22, 2008 Daviess County conviction for
operating a motor vehicle after forfeiture of license for life, a Class C felony; 2)
October 12, 2004 Dubois County conviction for operating a motor vehicle after
forfeiture of license for life, a Class C felony; 3) January 7, 2013 Orange County
conviction for operating a motor vehicle after forfeiture of license for life, a
Class C felony; 4) March 30, 2004 Orange County conviction for operating a
vehicle as habitual traffic violator,3 a Class D felony; and 5) November 4, 1997
Orange County conviction for child molesting, a Class B felony. Appellant’s
App. Vol II at 22.
[5] Tuell filed a motion to dismiss the habitual offender charge. Id. at 53-54. At
the hearing on the motion, defense counsel argued that the habitual offender
enhancement should be dismissed because Tuell was charged with operating a
motor vehicle after forfeiture of license for life under a progressive penalty
scheme, and a penalty under such a statute could not be further enhanced under
3
As discussed below, this is the conviction that makes Tuell eligible for Count 1, operating a motor vehicle
after forfeiture of license for life, and his double enhancement arguments rest, in part, on the State’s possible
use of this conviction to support its habitual offender allegation in Count 2.
Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019 Page 3 of 10
the habitual offender statute. Tr. Vol. II at 11-13. In denying the motion, the
trial court concluded that the habitual offender charge would not create an
impermissible double enhancement. Specifically, it found and concluded as
follows:
2. I.C. 35-5-2-8(e) sets forth the limitations on “double
enhancement”:
(e) The state may not seek to have a person sentenced as a
habitual offender for a felony offense under this section if the
current offense is a misdemeanor that is enhanced to a felony in
the same proceeding as the habitual offender proceeding solely
because the person had a prior unrelated conviction. . . .
3. . . . Neither of these apply to this situation.
4. [Tuell] cites Dye v. State, 972 N.E.2d 853 (Ind. 2012), aff’d on
reh’g, 984 N.E.2d 625 (Ind. 2013), as authority that double
enhancement is not permitted. In Dye, the court held that it was
impermissible for the defendant’s unlawful possession of a
firearm by a serious violent felon conviction to be enhanced
further by the general habitual offender statute. On rehearing,
the supreme court further clarified that the defendant’s habitual
offender enhancement was vacated not merely because the
serious violent felon statute, a progressive-penalty statute, and
the general habitual offender enhancement were simultaneously
applied, but more precisely because the past felonious conduct
used as the basis for the habitual offender charge was a part of the
same “uninterrupted transaction” on which the serious violent felon
charge was based. Dye, 984 N.E.2d at 630.
5. . . . Woodruff v. State, 80 N.E.3d 216 (Ind. Ct. App 2017)
clarified . . . Dye. Dye does not stand for the proposition that
Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019 Page 4 of 10
whenever any two enhancements are applied to an underlying
conviction there is an impermissible double enhancement.
Rather, Dye states that there is a double enhancement issue when
more than one of the types of statutes that authorize
enhancements for repeat offenders are applied to the same proof of an
“uninterrupted transaction.” Therefore, double enhancement
analysis is proper when the proof of previous criminal conduct is
the basis of more than one enhancement.
Appellant’s App. Vol. II at 56-58 (emphasis added).
[6] Upon Tuell’s request, the trial court certified its ruling for discretionary
appellate review, and on June 22, 2018, we granted Tuell’s motion for
interlocutory appeal and accepted jurisdiction over this case. Id. at 83, 91.
Discussion and Decision
[7] Tuell contends that the trial court erred in denying his motion to dismiss the
habitual offender charge, claiming it subjects him to an impermissible double
enhancement. “We review a trial court’s ruling on a motion to dismiss a
charging information for an abuse of discretion, which occurs only if a trial
court’s decision is clearly against the logic and effect of the facts and
circumstances.” Pavlovich v. State, 6 N.E.3d 969, 974 (Ind. Ct. App. 2014),
trans. denied. Here, because the parties do not dispute the facts, we are
presented with a question of law to which we apply a de novo standard of
review. See Moss v. State, 6 N.E.3d 958, 960 (Ind. Ct. App. 2014). In
interpreting a statute, the reviewing court heeds both what the statute “does not
say” and what it “does say.” State v. Brown, 70 N.E.3d 331, 334 (Ind. 2017).
Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019 Page 5 of 10
[8] Tuell argues that allowing the State to proceed with the habitual offender
charge subjects him to an impermissible double enhancement because he would
be simultaneously subjected to two enhancing statutes, the progressive penalty
statute of his operating a motor vehicle after forfeiture of license for life charge
and the enhancement from the habitual offender charge. Tuell contends that
there is no statutory authority for such a double enhancement, citing to Stanek v.
State, 603 N.E.2d 152 (Ind. 1992). Appellant’s Br. at 10.
[9] We look to our Supreme Court’s case in Dye v. State, 972 N.E.2d 853, 856-57
(Ind. 2012) for guidance on this issue:
It has long been established that double enhancements are not
permissible unless there is explicit legislative direction
authorizing them. E.g., Beldon v. State, 926 N.E.2d 480, 483-84
(Ind. 2010); Breaston v. State, 907 N.E.2d 992, 995 (Ind. 2009);
Mills v. State, 868 N.E.2d 446, 449 (Ind. 2007) . . . . Whether a
particular double enhancement is permissible, therefore, is a
matter of statutory interpretation. E.g., Nicoson v. State, 938
N.E.2d 660, 663 (Ind. 2010).
There are three types of statutes authorizing enhanced sentences
for recidivist offenders: the general habitual offender statute,
specialized habitual offender statutes, and progressive-penalty
statutes. [State v.] Downey, 770 N.E.2d [794,] 795-96 [(Ind.
2012)]. The general habitual offender statute, Ind. Code § 35-50-
2-8 (2008), authorizes a sentencing enhancement of up to 30
years where the defendant has been convicted of three
“unrelated” felonies. Downey, 770 N.E.2d at 795. . . .
[P]rogressive-penalty statutes, which are the most specialized,
elevate the level of an offense (with a correspondingly enhanced
sentence) where the defendant previously has been convicted of a
particular offense. Downey, 770 N.E.2d at 796 . . . Ind. Code §§
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9-30-10-16 & -17 (2010) (Class D felony driving while privileges
are suspended elevated to Class C felony if defendant has prior
conviction for driving while suspended) . . . . Double-
enhancement issues arise where more than one of these statutes
is applied to the defendant at the same time. See, e.g., Downey,
770 N.E.2d at 795-98.
Dye, 972 N.E.2d at 856-57.; see also Dugan v. State, 976 N.E.2d 1248, 1250 (Ind.
Ct. App. 2012); Shepherd v. State, 985 N.E.2d 362, 363 (Ind. Ct. App. 2013).
[10] Here, the underlying felony Tuell was charged with -- Level 5 felony operating
a motor vehicle after forfeiture of license for life -- is a progressive penalty
statute. Dye, 972 N.E.2d at 857. “The general rule is that, 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.” Id. (emphasis in
original).
[11] Tuell rests much of his argument on Stanek, 603 N.E.2d at 152, which involved
similar facts to the present case. There, Stanek was convicted of operating a
motor vehicle after driving privileges are forfeited for life, a Class C felony, and
with being a habitual offender. Id. at 153. While acknowledging that the
habitual offender statute in effect at the time allowed the State to seek a habitual
offender enhancement for “any felony,” Stanek construed the habitual offender
statute and Article 12 of Title 9 – the then article on general penalty provisions
for motor vehicle offenses -- to hold that the legislature did not intend that a
conviction for a Class C felony under Article 12 to be subject to further
Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019 Page 7 of 10
enhancement under the general habitual offender statute because it
characterized then Article 12 as a “discreet, separate, and independent habitual
offender statute.” Id. at 153-54. Thus, the Supreme Court vacated Stanek’s
habitual offender enhancement. Id. at 154. Tuell argues the same reasoning
applies here and that this court should reverse the trial court’s denial of his
motion to dismiss the habitual offender count.
[12] However, while Tuell aptly observes that the facts in Stanek are like his case, he
ignores the substantial evolution in double enhancement jurisprudence since
Stanek was decided, both in case law and the habitual offender statute. As to
caselaw, as noted above, many Indiana decisions have held that there is no
double enhancement unless more than one of the statutes that authorize
enhancements for repeat offenders are applied to the same felony or the same proof of
an “uninterrupted transaction.” See; Mills, 868 N.E.2d at 452; Beldon, 926 N.E.2d
at 483; and Woodruff, 80 N.E.3d at 218. Similar holdings can be found in
Dugan, 976 N.E.2d at 1250 and Shepherd, 985 N.E.2d at 363. Thus, under this
line of cases, there would be no impermissible double enhancement as long as
the State does not use the 2004 Orange County conviction for operating a
vehicle as habitual traffic violator as a predicate felony for Tuell’s habitual
offender status. That offense has already been enhanced pursuant to a
progressive penalty statute.
[13] As to the habitual offender statute itself, the General Assembly has amended it
several times since 1992, when Stanek was decided. Subsection (e) of the
current habitual offender statute states the following:
Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019 Page 8 of 10
The state may not seek to have a person sentenced as a habitual offender
for a felony offense under this section if the current offense is a
misdemeanor that is enhanced to a felony in the same proceeding as the
habitual offender proceeding solely because the person had a prior
unrelated conviction. However, a prior unrelated felony conviction
may be used to support a habitual offender determination even if
the sentence for the prior unrelated offense was enhanced for any
reason, including an enhancement because the person had been
convicted of another offense.
Ind. Code § 35-50-2-8(e) (emphasis added). The emphasized language in
subsection (e) provides explicit legislative direction about when the State may
not seek a double enhancement. That language, however, does not bar double
enhancement here because Tuell’s current offense is not a misdemeanor that
was enhanced to a felony in the same proceeding as the habitual offender
proceeding solely because of a prior unrelated conviction. Thus, by the plain
language of the statute, the circumstances here do not pose the risk of an
impermissible double enhancement. Recalling that it is as important to observe
what a statute does not say as what it does say, we find that this language
provides explicit authorization for the potential double enhancement with
which Tuell has been charged. See Brown, 70 N.E.3d at 334.
[14] The legislative history of the habitual offender statute makes it even clearer that
the statute provides specific authorization for a potential double enhancement
here. When Stanek was decided, the habitual offender statute allowed the State
to seek a habitual offender status for “any felony.” Stanek, 603 N.E.2d at 153.
The version of the statute effective until June 30, 2014, did not allow the State
to seek a habitual offender enhancement on an offense that was already
Court of Appeals of Indiana | Opinion 18A-CR-1186 | January 15, 2019 Page 9 of 10
enhanced under the same statute at issue here, the progressive penalty statue for
motor vehicle offenses, Indiana Code sections 9-30-10-16 and -17. That version
of the statute stated: “The state may not seek to have a person sentenced as a
habitual offender for a felony offense under this section if . . . the offense is an
offense under IC 9-30-10-16 or IC 9-30-10-17.” Ind. Code § 35-50-2-8 (effective
until June 30, 2014). However, the version of the statute that went into effect
on July 1, 2014, removed this exclusion. See Ind. Code § 35-50-2-8 (effective
July 1, 2014). Finally, the current version of the habitual offender statute is
consistent with the previous version of the statute; that is, it does not include
the prohibition on using the habitual offender enhancement for offenses under
Indiana Code section 9-30-10-16 and -17.
[15] These changes to the habitual offender statute convince us even more that the
current statute gives explicit authorization for use of the habitual offender
enhancement in the ways Tuell seeks to avoid. Over time, the legislature has
enacted various iterations of the habitual offender statute, calibrating it one way
or another, so we see the narrow exclusion in the current version of the statute
as not being arbitrary or arising by happenstance but, instead, a product of the
legislature’s considered deliberation about what exclusions best fit the needs of
our State at this time. Accordingly, the trial court did not abuse its discretion in
denying Tuell’s motion to dismiss Count 2, the habitual offender charge.
[16] Affirmed.
Vaidik, C.J., and Riley, J., concur..
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