Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Jul 03 2013, 7:01 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER STEPHEN T. OWENS
Attorney General of Indiana Public Defender of Indiana
CYNTHIA L. PLOUGHE EMILY J. WITNEY
Deputy Attorney General Deputy Public Defender
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STATE OF INDIANA, )
)
Appellant-Respondent, )
)
vs. ) No. 02A04-1209-PC-476
)
MARK M. HAIRSTON, )
)
Appellee-Petitioner. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Robert J. Schmoll, Senior Judge
Cause No. 02D04-0708-PC-95
July 3, 2013
MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION
CRONE, Judge
Case Summary
Mark M. Hairston petitions for rehearing in State v. Hairston, No. 02A04-1209-PC-
476 (Ind. Ct. App. Mar. 15, 2013), and requests that we vacate his ten-year repeat sexual
offender enhancement. In our memorandum decision, we reversed the post-conviction
court’s decision to vacate Hairston’s habitual offender finding on identity grounds. In
reinstating Hairston’s habitual offender adjudication, we resurrected an issue that the post-
conviction court had deemed moot: whether the trial court impermissibly enhanced
Hairston’s sentence by imposing a consecutive sentence that includes a habitual offender
enhancement and a repeat sexual offender enhancement, both based on the same predicate
offense (his 1996 sexual battery conviction) and whether appellate counsel provided
ineffective assistance of counsel in failing to raise the double enhancement issue in
Hairston’s direct appeal.1 The post-conviction court never addressed the issue on its merits,
and we grant Hairston’s petition for the sole purpose of addressing the double enhancement
issue. Because the applicable statutes do not explicitly authorize double enhancements and
because the trial court imposed the enhancements consecutively, we conclude that Hairston’s
sentence runs afoul of the protection against double enhancements. We also conclude that
his appellate counsel’s failure to raise the issue on direct appeal amounts to ineffective
assistance. As a result, his ten-year repeat sexual offender enhancement must be vacated, and
we remand with instructions to adjust his sentencing accordingly. We affirm our original
1
The post-conviction court specifically concluded, “Given the ruling above in this cause and the
vacation of the Habitual Offender enhancement[,] the issue of the defendant’s sentence being doubly enhanced
is therefore rendered moot.” Appellant’s App. at 521.
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decision in all other respects.
Discussion and Decision
Double enhancements of a defendant’s sentence are permissible only when there is
explicit legislative direction authorizing them. Dye v. State, 972 N.E.2d 853, 857 (Ind.
2012). The rule is well-established and applies to all three types of statutes authorizing
enhanced sentences for recidivist offenders: general habitual offenders, specialized habitual
offenders, and progressive-penalty statutes. Id. at 856-57; see, e.g., Stanek v. State, 603
N.E.2d 152, 153-54 (Ind. 1992) (vacating habitual offender enhancement where defendant’s
conviction had already been enhanced to class C felony pursuant to progressive-penalty
statute governing habitual traffic law violators). Whether a particular double enhancement is
permissible is therefore a matter of statutory interpretation. Dye, 972 N.E.2d at 857. Here,
Hairston’s sentence was enhanced under both the general habitual offender statute, Indiana
Code Section 35-50-2-8, and the repeat sexual offender statute, Indiana Code Section 35-50-
2-14. Neither statute explicitly authorizes the use of both enhancements in the same
sentence.
In Sweatt v. State, 887 N.E.2d 81 (Ind. 2008), our supreme court noted the lack of
express legislative direction in evaluating permissible and impermissible double
enhancements. There, the alleged double enhancement involved the use of the same
predicate offense, Sweatt’s 1994 rape conviction, to support a general habitual offender
finding and to serve as the basis for a serious violent felon (“SVF”) designation. Id. at 83.
The Sweatt court explained that a court may avoid the double enhancement problem by
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attaching the habitual offender enhancement to a count separate from the SVF offense, i.e., a
burglary count. Id. at 84. As such, each sentence, taken separately, would pass muster. Id.
However, “where separate counts are enhanced based on the same prior felony conviction,
ordering the sentences to run consecutively has the same effect as if the enhancements both
applied to the same count.” Id. “On the other hand, if the trial court orders the sentences to
run concurrently, the enhancements, though duplicative in name, operate just once to increase
the defendant’s term of imprisonment.” Id. Noting that “the potential penalties flowing
from various criminal acts are first and foremost a matter for legislative decision,” our
supreme court remanded with instructions that the trial court consider whether to revise
Sweatt’s sentence to remedy the defect. Id. at 85.
Here, the trial court attached the general habitual offender enhancement to Hairston’s
kidnapping conviction and the repeat sexual offender enhancement to his aiding in deviate
sexual conduct conviction. However, the court imposed the sentences consecutively. Thus,
Hairston’s sentence contains an impermissible double enhancement. Unlike the defendants
in Stanek, Dye, and Sweatt, however, Hairston raises the issue not as a freestanding claim,
but rather within the framework of an ineffective assistance of counsel claim. Ind. Post-
Conviction Rule 1(8). As such, it must be examined within the framework of the two-
pronged Strickland test. To prevail on an ineffective assistance claim, the petitioner must
satisfy two components, i.e., he must demonstrate both deficient performance and prejudice
resulting from it. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Hairston’s ineffective assistance claim concerns his appellate counsel’s failure to raise
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the double enhancement issue. The standard of review for a claim of ineffective assistance
of appellate counsel is identical to the standard for trial counsel. Lowery v. State, 640 N.E.2d
1031, 1048 (Ind. 1994), cert. denied (1995). The petitioner must establish deficient
performance by appellate counsel resulting in prejudice. Id. “Ineffective assistance of
appellate counsel claims generally fall into three basic categories: (1) denial of access to an
appeal, (2) waiver of issues, and (3) failure to present issues well.” Henley v. State, 881
N.E.2d 639, 644 (Ind. 2008). In evaluating whether appellate counsel performed deficiently
by failing to raise an issue on appeal, we apply the following test: (1) whether the unraised
issue is significant and obvious from the face of the record and (2) whether the unraised issue
is “clearly stronger” than the raised issues. Id. at 645.
Here, appellate counsel challenged the appropriateness of Hairston’s aggregate 147-
year sentence pursuant to Indiana Appellate Rule 7(B). In the midst of counsel’s research
and analysis of the sentence, he should have taken note of the various components that
contributed to such a lengthy term. Two of the components were sentence enhancements,
one based on the general habitual offender statute (a thirty-year enhancement) and the other
based on the repeat sexual offender statute (a ten-year enhancement). Both enhancements
were based on the same predicate offense, his 1996 sexual battery conviction. These
enhancements accounted for forty years of his 147-year sentence, and based on the rule
espoused in Stanek and its progeny, appellate counsel should have raised the issue of double
enhancement. The issue was significant and obvious in the record and was clearly stronger
than a general challenge to the appropriateness of Hairston’s sentence. In failing to raise it,
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counsel performed deficiently. Accordingly, we remand to the post-conviction court with
instructions to issue an amended sentencing order vacating Hairston’s ten-year repeat sexual
offender enhancement.
We affirm our original decision in all other respects.
KIRSCH, J., and BARNES, J., concur.
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