Pursuant to Ind.Appellate Rule 65(D), Oct 31 2013, 5:23 am
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN T. WILSON GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVEN WILSON, )
)
Appellant-Defendant, )
)
vs. ) No. 33A04-1304-CR-189
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HENRY CIRCUIT COURT
The Honorable Bob A. Witham, Judge
Cause No. 33C03-1205-FD-186
October 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge
Steven Wilson appeals the seven-year habitual substance offender enhancement1 of
his two-and-a-half-year sentence for Class D felony operating a vehicle while intoxicated. 2
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 22, 2011, Wilson, who was under the influence of four different prescription
medications, caused serious injuries to Samantha VanMatre when he drove head-on into the
vehicle in which she was riding. The State charged Wilson with Class D felony operating a
vehicle while intoxicated, Class A misdemeanor criminal recklessness,3 Class C
misdemeanor operating a vehicle with a controlled substance,4 and Class B misdemeanor
public intoxication.5 The State later amended the charging information to allege Wilson was
an habitual substance offender.
Wilson agreed to plead guilty to Class D felony operating a vehicle while intoxicated
and to admit being an habitual substance offender. In exchange, the State would drop the
other charges against him. Sentencing was left to the discretion of the trial court. The trial
court accepted Wilson’s plea and sentenced him to two-and-one-half years enhanced by
seven years based on his adjudication as an habitual substance offender.
1
Ind. Code § 35-50-2-10.
2
Ind. Code § 9-30-5-2 (operating a vehicle while intoxicated); Ind. Code § 9-30-5-3 (enhancing to Class D
felony based on prior conviction of operating a vehicle while intoxicated).
3
Ind. Code § 35-42-2-2.
4
Ind. Code § 9-30-5-1(c).
5
Ind. Code § 7.1-5-1-3.
2
DISCUSSION AND DECISION
Wilson challenges only the seven-year habitual substance offender enhancement to his
sentence. Pursuant to Ind. Code § 35-50-2-10(f):
the court shall sentence a person found to be a habitual substance offender to
an additional fixed term of at least three (3) years but not more than eight (8)
years imprisonment, to be added to the term of imprisonment imposed under
IC 35-50-2 or IC 35-50-3. If the court finds that:
(1) three (3) years or more have elapsed since the date the person
was discharged from probation, imprisonment, or parole (whichever is
later) for the last prior unrelated substance offense conviction and the
date the person committed the substance offense for which the person is
being sentenced as a habitual substance offender;
*****
then the court may reduce the additional fixed term. However, the court may
not reduce the additional fixed term to less than one (1) year.
The sentence enhancement imposed based on a finding a person is an habitual
offender6 is left to the trial court’s sound discretion. Johnston v. State, 578 N.E.2d 656, 659
(Ind. 1991). “Aside from setting the parameters regarding the length of a habitual offender
enhancement, the relevant statutes contain no guidelines or formulas for courts to apply or
follow when determining the length of the habitual offender enhancement.” Montgomery v.
State, 878 N.E.2d 262, 268 (Ind. Ct. App. 2007).
Wilson admitted he was an habitual substance offender and the trial court enhanced
his sentence by seven years as permitted by Ind. Code § 35-50-2-10(f). Additionally,
6
Johnston and Montgomery both involve sentencing enhancements under the general habitual offender
statute, Ind. Code § 35-50-2-8. However, “[b]ecause the language of [the habitual substance offender] statute
mirrors the language contained in Ind. Code § 35-50-2-8, the general habitual offender statute, decisions
interpreting the habitual offender statute are applicable to issues raised under [the habitual substance offender
statute].” Roell v. State, 655 N.E.2d 599, 601 (Ind. Ct. App. 1995).
3
Wilson’s criminal activities began in 1973 as a juvenile and have escalated as he has aged.
He has been convicted five times of the operating a vehicle while intoxicated, which is also
the crime that is the subject of his current conviction. As the trial court acted within the
confines of the statute, it did not abuse its discretion when it enhanced Wilson’s two-and-
one- half year sentence by seven years. See Montgomery, 878 N.E.2d at 268 (trial court did
not abuse its discretion in imposing habitual offender enhancement in light of Montgomery’s
criminal history). Accordingly, we affirm.
Affirmed.
BAILEY, J., and BRADFORD, J., concur.
4