FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DANIEL J. MOORE GREGORY F. ZOELLER
Laszynski & Moore Attorney General of Indiana
Lafayette, Indiana
IAN MCLEAN
Deputy Attorney General
Indianapolis, Indiana
May 07 2014, 9:27 am
IN THE
COURT OF APPEALS OF INDIANA
JOHN JACOB VENTERS, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1305-CR-481
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Michael A. Morrissey, Judge
Cause No. 79D06-1201-FD-11
May 7, 2014
OPINION – FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
John Jacob Venters (“Venters”) appeals his sentence for operating a vehicle while
intoxicated (“OVWI”)1, a Class D felony, enhanced by the habitual substance offender
statute.2
We reverse and remand with instructions for the trial court to order Venters’s
enhanced sentence to run concurrently to his previously enhanced sentences.
ISSUE
Whether the trial court erred when it ordered Venters’s sentence at issue in
this case to be served consecutively to his previously entered sentences that
were enhanced by habitual offender statutes.
FACTS
On January 11, 2008, Venters received a three year suspended sentence under cause
number 79D01-0706-FB-024 (“FB-024”) for obtaining a controlled substance by fraud or
deceit, a class D felony. On February 19, 2009, Venters received an eleven year enhanced
sentence under cause number 79D01-0809-FC-064 (“FC-064”) for (1) obtaining a legend
drug by forgery or alteration, a class D felony; (2) OVWI, a class D felony; and (3) being
an habitual substance offender. On January 4, 2013, Venters received an enhanced
nineteen year sentence under cause number 79D01-1206-FB-011 (“FB-011”) for reckless
homicide, a class C felony, and for being an habitual offender.
The instant case arises from a different set of charges filed under cause number
70D01-1201-FD-011 (“FD-011”). On October 2, 2011 in Tippecanoe County, Venters
1
Ind. Code § 9-30-5-3.
2
Ind. Code § 35-50-2-10.
2
was the driver of a vehicle that was involved in an accident. Deputy Thomas Lehman
(“Deputy Lehman”) with the Tippecanoe County Sheriff’s Department arrived at the scene
of the crash and observed that Venters had slurred speech with bloodshot and watery eyes.
Venters failed a field sobriety test, and Deputy Lehman advised him of the Indiana Implied
Consent Law. Venters submitted to a blood draw and tested positive for hydrocodone and
klonopin. On or about January 11, 2012, the State charged Venters with three misdemeanor
counts of OVWI. In addition, the State enhanced each of the misdemeanor counts to
felonies by alleging that Venters had been convicted of OVWI within the last five years.
To support the felony charges, the State enhanced the misdemeanors to felonies using
Venters’s conviction under cause number FC-064 in each felony count. Finally, the State
alleged that he was an habitual substance offender. To support its allegation that Venters
had at least two prior unrelated substance offense convictions, the State alleged that
Venters had been convicted of the substance offenses in cause numbers FB-024, FC-064,
and FB-011.
Venters pled guilty without an agreement on December 21, 2012. The trial court
entered judgment of conviction on one felony OVWI charge and Venters admitted that he
was an habitual substance offender. The trial court held a sentencing hearing on April 3,
2013. After considering the aggravating and mitigating circumstances, the trial court
sentenced Venters to three (3) years on the OVWI charge, enhanced by seven (7) years
because of the habitual substance offender statute. The trial court suspended two (2) years
of the executed sentence to probation. The trial court ordered that the sentence at issue in
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this case be served consecutively to the sentences imposed under cause numbers FB-024,
FC-064, and FB-011.
On April 17, 2003, Venters filed a motion to correct error with the trial court. The
trial court held a hearing on April 29, 2013. After hearing arguments, the trial court entered
an order denying Venters’s motion on May 20, 2013. Venters now appeals.
DECISION
Notwithstanding the authority afforded to appellate courts by Indiana Appellate
Rule 7(B), “sentencing decisions rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482,
490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2012). An
abuse of discretion occurs if the decision is “clearly against the logic and effect of the facts
and circumstances before the court, or the reasonable, probable, and actual deductions to
be drawn therefrom.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M.,
473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in
sentencing a defendant by imposing a sentence for reasons that are improper as a matter of
law. Anglemyer, 868 N.E.2d at 490. “Where the issue presented is a pure question of law,
we review the matter de novo.” State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).
Venters argues that the trial court had no statutory authority to order the present
sentence, enhanced by the habitual substance offender statute, to be served consecutively
to the previously enhanced sentences. We agree.
In Starks v. State, 523 N.E.2d 735 (Ind. 1988), our Indiana Supreme Court addressed
the propriety of consecutive habitual offender sentences. There, the trial court sentenced
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Starks to three-year concurrent sentences on eighteen theft convictions. The trial court
enhanced two of the three-year sentences by thirty years and ordered that the enhanced
sentences run consecutively to each other. In reversing the trial court, the Supreme Court
explained as follows:
[S]entencing courts [are statutorily granted] the power to order consecutive
sentences in their discretion. The [habitual offender] provision appears
unlimited in scope, applying to the class of all sentences. Yet the power to
order consecutive sentences enhanced under the habitual offender statue is a
special statutory one. It can have the dramatic effect of increasing a single
sentence from two years to half a lifetime. A basis for such a gross impact
is the existence of the two prior unrelated felony convictions and sentences,
and the dangerous nature of the offender which they bespeak. A basis for the
gross impact which consecutive sentences may have is, by contrast, the moral
principle that each separate and distinct criminal act deserves a separately
experienced punishment. Furthermore the habitual offender status
determination carries a more binding effect upon the sentence tha[n] does the
determination of multiple criminal acts. Therefore, the purpose of and
process of the felony habitual offender statute has special and distinct
dimensions.
Id. at 736-37. The Court concluded as follows:
[The relevant] statutes are silent on the question of whether courts have the
authority to require habitual offender sentences to run consecutively, when
engaged in the process of meting out several sentences. In the absence of
express statutory authorization for such a tacking of habitual offender
sentences, there is none.
Id. at 737 (emphasis added).
More appropriate to this case, this court has since held that consecutive habitual
offender enhancements are improper even when the sentences arise out of separate and
unrelated trials or sentencing hearings. Ingram v. State, 761 N.E.2d 883, 885-86 (Ind. Ct.
App. 2002); Smith v. State, 774 N.E.2d 1021 (Ind. Ct. App. 2002). In 2009, our Supreme
Court agreed, stating again that “a trial court cannot order consecutive habitual offender
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sentences.” Breaston v. State, 907 N.E.2d 992, 994 (Ind. 2009). “This holds true whether
the concurrent enhanced sentence is imposed in a single proceeding or in separate
proceedings.” Id. at 995. This rule even applies to those circumstances where a defendant,
“after being arrested for one (1) crime,” commits another crime. Id.; See also Ind. Code §
35-50-1-2(d).
Despite this holding, the State essentially argues that defendants “whose conduct
has triggered enhancements under different habitual offender regimes [should] be eligible
for consecutive sentencing under [Ind. Code §] 35-50-1-2. (Appellee’s Br. 11). The State
also argues that because the Legislature has amended the habitual offender statute to
exclude certain substance and driving offenses and has created separate habitual offender
statutes for both, the legislature has, in effect, stated its intent that sentences enhanced by
different habitual offender statutes can be served consecutively.
However, this Court has recently held that sentences enhanced by either the general
habitual offender statute or the habitual substance offender statute cannot run
consecutively. Aslinger v. State, 2 N.E.3d 84 (Ind. Ct. App. 2014). In Aslinger, the trial
court held a joint sentencing hearing for two separate cases. In both cases, the trial court
enhanced each sentence using the habitual substance offender statute. In addition, the trial
court ordered that each sentence be served consecutively to one another because the
defendant had committed an offense while released on bond. In reaching our decision, this
court noted that the purpose of the general habitual offender statute “is to more severely
penalize those persons whom prior sanctions have failed to deter from committing
felonies.” Id. (quoting Baker v. State, 425 N.E.2d 98, 100 (Ind. 1981)).
6
We find this principle equally applicable to the [habitual substance offender]
statute. The State requests that this court accord different treatment because
the [habitual substance offender] statute provides a more modest level of
enhancement than does the general habitual offender statute. Though it is
tailored for a specific situation, the [habitual substance offender] statute
serves the same purpose of enhancing the punishment for an individual
whose punishments in two prior substance offenses were not sufficient to
deter his or her commission of the third offense. Furthermore, like the
general habitual offender statute, the [habitual substance offender] statute is
silent as to consecutive enhancements, and we decline to diverge from the
supreme court’s conclusion that, in the absence of explicit permission, the
trial court has no such authority.3
Aslinger, 2 N.E.2d at 84 (internal citation omitted). Thus, we are not persuaded by the
State’s argument.
While our Supreme Court in Starks established that the habitual offender statute had
“special and distinct dimensions” from that of I. C. § 35-50-1-2, the prevailing point in
Starks and the line of cases that follow is that absent express statutory authority to do so,
trial courts cannot impose consecutive enhanced sentences, regardless of the circumstances
under which they arise.
The habitual offender and habitual substance offender statutes have been amended
several times since Starks. With those amendments, the statutes are still silent on a trial
court’s authority to impose consecutive habitual offender sentences. Accordingly, we
reverse and remand to the trial court with instructions to run Venters’s enhanced sentence
3
Under the general habitual offender statute in effect at the time of Venters’s conviction, a person
determined to be an habitual offender could be sentenced to an additional fixed term of not less than the
advisory sentence and three times the advisory sentence for the underlying offense, but in no case more
than thirty years. Ind. Code § 35-50-2-8(h). Under the habitual substance offender statute in effect at the
time of Venters’s conviction, a person determined to be an habitual substance offender could receive an
additional fixed term of between three and eight years imprisonment. Ind. Code § 35-50-2-10(f).
7
at issue in this case concurrently with any previous sentence enhanced by the habitual
offender or habitual substance offender statutes.
Reversed and remanded.
MATHIAS, J., and BRADFORD, J., concur.
8