Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Nov 26 2014, 9:19 am
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:
CARLOS I. CARRILLO GREGORY F. ZOELLER
Lafayette, Indiana Attorney General of Indiana
ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
BRIAN S. HABBINGA, )
)
Appellant-Defendant, )
)
vs. ) No. 79A02-1404-CR-281
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE CIRCUIT COURT
The Honorable Donald L. Daniel, Judge
Cause No. 79C01-1101-FC-3
November 26, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Brian Habbinga appeals his convictions and sentence for Class C felony operating a
motor vehicle while privileges are forfeited for life, Class A misdemeanor operating a motor
vehicle while intoxicated, Class A misdemeanor operating a motor vehicle with at least .15
grams of alcohol, Class D felony operating a motor vehicle while having a prior conviction
for operating a motor vehicle while intoxicated, and Class D felony operating a motor vehicle
with at least .15 grams of alcohol with a prior conviction. We affirm and remand.
Issues
Habbinga raises five issues, which we consolidate and restate as:
I. whether his convictions violate double jeopardy; and
II. whether he was properly sentenced.
Facts
On January 8, 2011, Habbinga was pulled over in Tippecanoe County after an officer
saw that his license plate was not properly illuminated and watched him quickly change lanes
without signaling, almost spinning out of control. During the traffic stop the officer
suspected Habbinga was intoxicated. Habbinga failed three field sobriety tests and had a
BAC of .19.
The State charged Habbinga with Count I, Class C felony operating a motor vehicle
while privileges are forfeited for life; Count II, Class A misdemeanor operating a motor
vehicle while intoxicated; Count III, Class A misdemeanor operating a motor vehicle with at
least .15 grams of alcohol; Count IV, Class D felony operating a motor vehicle while having
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a prior conviction for operating a motor vehicle while intoxicated; and Count V, Class D
felony operating a motor vehicle with at least .15 grams of alcohol with a prior conviction.
The State also alleged in Count VI that Habbinga was an habitual substance offender
(“HSO”).
In an open plea, Habbinga pled guilty as charged and admitted to having at least four
prior unrelated convictions as alleged by the State in Count VI. In August 2011, he was
sentenced. The trial court considered Habbinga’s guilty plea as a mitigator and his criminal
history, his history of drug and alcohol abuse, and his prior unsuccessful attempts at
rehabilitation as aggravators. The trial court sentenced Habbinga to five years on Count I,
one year on Counts II and III, two years on Counts IV and V, and five years on Count VI.
The trial court ordered the sentences on Counts II, III, IV, and V to be served concurrently
and ordered those sentences to be served consecutive to Counts I and VI for a total sentence
of twelve years. The trial court ordered Habbinga to serve ten years executed in the
Department of Correction with the last four years to be served in a community corrections
program if accepted. The remaining two years were suspended to probation.
In 2013, Habbinga filed an amended petition for post-conviction relief challenging his
guilty plea and arguing that he received ineffective assistance of counsel. Habbinga also
argued that the consecutive sentences resulted in an improper double enhancement. The
post-conviction court rejected Habbinga’s challenge to his guilty plea and his claim that he
received ineffective assistance of counsel. The post-conviction court, however, agreed with
Habbinga regarding the alleged sentencing errors and concluded:
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The Petitioner has a valid argument in arguing that the same
convictions may have been used as to [sic] prior unrelated
convictions to support the enhancement of more than one
offense by way of elevating the charge from a misdemeanor to a
felony or from a felony to a more serious felony. Also it’s not
clear what prior unrelated convictions the Court may have used
to support sentencing the defendant as a habitual offender.
Because of the potential overlap and the potential abuse of the
prior unrelated convictions, the Court finds that the sentences
should be set aside and the defendant returned to court for
sentencing. The second incident that the Court finds is that the
sentencing court inappropriately treated Count 6 as a separate
offense when Count 6 should have been used as an enhancement
for either Counts 4 or 5.
App. p. 47. The post-conviction court vacated the sentence and ordered Habbinga to be
resentenced.
On April 11, 2014, Habbinga was resentenced. The trial court did not specifically
identify any aggravators or mitigators and maintained the same term of years on each
conviction, sentencing Habbinga to five years on Count I, one year on Counts II and III, two
years on Counts IV and V, and to five years for being an HSO. The trial court ordered the
HSO finding be used to enhance Count IV. The trial court then explained, “Counts 1 through
5 will run concurrently unless otherwise merged and count 6 will be consecutive to all other
counts for a total of 10 years.” April 11, 2014 Sent. Hr. Tr. p. 12.
Habbinga objected on the basis that the HSO finding improperly enhanced Count I.
The State agreed that the HSO finding could not enhance Count I or be run consecutive to
Count I but explained that it could enhance Count IV and that Count IV could run
consecutive to Count I. The State explained its position that the sentence on Count I would
be five years and that the sentence on Count IV would be two years, enhanced by an
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additional five years by the HSO finding, and those sentences would run consecutively for a
total sentence of twelve years.
The trial court then clarified that the HSO finding would enhance Count IV and stated
“it’s the same sentences on each of the six counts as previously ordered. And the Court’s
order as I dictated a few moments ago that this will be executed but that the remainder shall
be through community corrections at such time as he is accepted into community corrections
for the rest of that time.” Id. at 16. In its written sentencing order, the trial court ordered
Habbinga to:
execute five (5) years on Count I, one (1) year on Count II, one
(1) year on Count III, two (2) years on Count IV, two (2) years
on Count V, and five (5) years on Count VI. Count IV would be
enhanced by Count VI. Count IV to run consecutive to Count I.
. . . The remainder of the executed time should be served in
Tippecanoe County Community Corrects if accepted.
App. p. 49. Habbinga now appeals.
Analysis
I. Double Jeopardy
Habbinga argues that his convictions for Counts II, III, IV, and V constitute double
jeopardy and that he should only have been convicted of either Count IV or Count V.
Habbinga, however, is raising this issue on direct appeal of his resentencing for convictions
that were based on his guilty plea. It is well-settled that “One consequence of pleading guilty
is restriction of the ability to challenge the conviction on direct appeal.” Tumulty v. State,
666 N.E.2d 394, 395 (Ind. 1996). Accordingly, Habbinga may not challenge these
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convictions on double jeopardy grounds on direct appeal of his resentencing following his
guilty plea.
II. Sentence
A. Double Enhancement
Habbinga argues he was improperly subject to a double enhancement because Count
IV, which was enhanced by the HSO finding, was run consecutive to Count I. Count I was
elevated to a Class C felony because of a September 2000 conviction for operating after
having been adjudged an habitual traffic violator. The HSO enhancement was based on a
September 2008 operating while intoxicated conviction, a September 2000 operating while
intoxicated conviction, a 1997 possession of marijuana conviction, and a 1992 operating
while intoxicated conviction. Habbinga contends that the fact that two different September
2000 offenses were used is irrelevant because both crimes arose of the same res gestae. See
Dye v. State, 984 N.E.2d 625, 629 (Ind. 2013) (explaining that impermissible double
enhancement occurs when the felonies used to establish an habitual offender adjudication and
serious violent felon status are “part of the same res gestae.”), opinion on reh’g; see also
Sweatt v. State, 887 N.E.2d 81, 84 (Ind. 2008) (acknowledging that, although the same prior
conviction can be used to enhance one sentence under a progressive penalty statute and to
enhance a different sentence under an habitual offender statute, a problem arises if the two
sentences are run consecutively).
Habbinga argues that, to run the sentences consecutively, the trial court was required
to specifically identify the two predicate offenses serving as the basis for the HSO finding
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and those sentences must have been unrelated to the case used to elevate Count I. Habbinga
acknowledges that the State alleged three other unrelated substance abuse offenses to
establish the HSO enhancement but claims that the trial court’s failure to identify which
offenses formed the basis for the HSO finding requires that either Count I or the HSO finding
be set aside or that the sentences be ordered to run concurrently.
The State generally agrees with Habbinga’s reading of the law. However, the State
contends that there is no double enhancement problem here because the September 2000
operating while intoxicated conviction was entirely unnecessary to prove Habbinga’s HSO
status. Indeed, the State listed four unrelated offenses in its HSO allegation and, at the guilty
plea hearing, Habbinga agreed “that there was no overlap between each of these four
convictions and that they are in fact prior unrelated convictions[.]” Guilty Plea Tr. p. 15. It
is well settled that, to establish an habitual felony enhancement, “Proof of three or more
felony convictions is mere surplusage.” Wilson v. State, 511 N.E.2d 1014, 1017 (Ind. 1987);
see also Elmore v. State, 688 N.E.2d 213, 216 (Ind. Ct. App. 1997) (“The State may offer
proof of more than two prior convictions, with the additional convictions considered to be
harmless surplusage.”), trans. denied. Based on Habbinga’s admission to having three other
prior unrelated convictions, we conclude that the inclusion of the September 2000 conviction
in the HSO enhancement was mere surplusage and any error in its inclusion was harmless.
Thus, Habbinga was not subject to an improper double enhancement because the September
2000 conviction was not necessary to support the HSO finding.
B. More Severe Sentence
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Habbinga contends that the trial court improperly resentenced him to a more severe
sentence than he originally received because the revised sentence did not include two years of
probation. In response the State asserts that, when the trial court imposed the new sentence,
it only moved the HSO enhancement from Count I to Count IV and allowed Habbinga to
serve the remainder of his executed term in a community corrections program. According to
the State, “the same sentence was imposed except for what the court explicitly changed, and
the court did not explicitly say that the last two years were no longer suspended to
probation.” Appellee’s Br. p. 22. The State describes the immediate change to community
corrections as a decrease rather than an increase in the sentence. Although the sentencing
order is not entirely clear on this point, in light of the State’s position that the two years of
probation remained unchanged, we cannot agree that the trial court increased Habbinga’s
sentence. However, we remand for the trial court to clarify the sentencing order in this
regard.
Habbinga also claims that it is not clear whether the trial court resentenced him to ten
or twelve years or whether he may immediately begin serving the remainder of his executed
sentence in a community corrections program. We disagree. When reading the transcript of
the sentencing hearing as a whole and the trial court’s written sentencing order, it is clear that
the trial court intended to impose a total sentence of twelve years and that Habbinga was
permitted to serve the remainder of his executed sentence in a community corrections
program upon acceptance. See McElroy v. State, 865 N.E.2d 584, 589 (Ind. 2007)
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(explaining that we are to examine both the written and oral sentencing statements to
discretion the findings of the trial court).
C. Abuse of Discretion
Habbinga claims that the trial court erred by sentencing him in excess of the advisory
sentences and to consecutive sentences without identifying and weighing the aggravators and
mitigators. At resentencing, the trial court did not enter a new sentencing statement
evaluating the aggravators and mitigators, nor did it incorporate or otherwise reference its
previous evaluation of such. However, it appears that the trial court was focused on
correcting the specific errors identified by the post-conviction court. Thus, we suspect that
the trial court was relying on the same previously found aggravators and mitigators when it
sentenced Habbinga to the same cumulative sentence.
However, to the extent the trial court abused its discretion by not specifically
identifying and weighing the aggravators, we are confident it would have imposed the same
sentence as was previously imposed based on its earlier evaluation of aggravators and
mitigators. See Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218 (Ind. 2007) (holding that if a trial court abuses its discretion in sentencing a
defendant, “remand for resentencing may be the appropriate remedy if we cannot say with
confidence that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.”). 1 At the first sentencing hearing, the
1
The cases upon which Habbinga relies for the proposition that the trial court was obligated to identify
and weigh all significant aggravators and mitigators were based on the previous presumptive sentencing
scheme that was substantially modified in 2005. Under the current advisory sentencing scheme, the trial
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trial court considered Habbinga’s guilty plea as mitigator and acknowledged that Habbinga
accepted responsibility for his actions. As an aggravator, the trial court considered
Habbinga’s criminal history, which consisted of two felony convictions, eight misdemeanor
convictions, two withheld judgments that were dismissed, seven other dismissed cases,
removal from a community corrections program, four warrants for failing to appear, five
petitions to revoke probation, and a pending petition to revoke probation. The trial court
noted, “At age 40 that’s just almost an overwhelming criminal history” consisting mostly of
substance-related offenses. August 1, 2011 Sent. Hr. Tr. p. 9. The trial court also considered
Habbinga’s history of illegal drug and alcohol use and that prior attempts at rehabilitation
had been unsuccessful, including the fact that he was on probation at the time of this offense.
Habbinga does not challenge the propriety of these aggravators and mitigators, and we are
confident that the trial court would have imposed the same sentence had it specifically
reassessed the aggravators and mitigators at the resentencing hearing. As such, it is
unnecessary to remand for resentencing on this basis.
D. Inappropriateness
Habbinga argues that his twelve-year sentence is inappropriate. Indiana Appellate
Rule 7(B) permits us to revise a sentence authorized by statute if, after due consideration of
the trial court’s decision, we find that the sentence is inappropriate in light of the nature of
the offenses and the character of the offender. Although Rule 7(B) does not require us to be
“extremely” deferential to a trial court’s sentencing decision, we still must give due
court’s weighing of aggravators and mitigators is no longer reviewable for an abuse of discretion. See
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consideration to that decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007). We also understand and recognize the unique perspective a trial court brings to its
sentencing decisions. Id. “Additionally, a defendant bears the burden of persuading the
appellate court that his or her sentence is inappropriate.” Id.
The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,
and identify some guiding principles for trial courts and those charged with improvement of
the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—the
aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or
length of the sentence on any individual count.” Id. Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime, the damage
done to others, and myriad other factors that come to light in a given case. Id. at 1224.
When reviewing the appropriateness of a sentence under Rule 7(B), we may consider all
aspects of the penal consequences imposed by the trial court in sentencing the defendant,
including whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d
1023, 1025 (Ind. 2010).
Habbinga was convicted of several offenses, including Class C felony operating a
motor vehicle while privileges are forfeited for life and Class D felony operating a motor
vehicle while intoxicated with a prior conviction for operating while intoxicated, which
sentence was enhanced by five years because of an HSO finding. At resentencing, Habbinga
Anglemyer, 868 N.E.2d at 491.
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was sentenced to twelve years, with two of those years suspended to probation, and the
remainder of the executed time to be served in community corrections if accepted.
Regarding the nature of the offense, a police officer observed Habbinga, whose BAC
was over twice the legal limit, making a quick move into the other lane without signaling and
causing his car to almost spin out of control. Although he did not cause an accident or injure
anyone, his driving while intoxicated in a dangerous manner posed a danger to the public in
general.
As for his character, Habbinga did accept responsibility for his actions by pleading
guilty in an open plea. This, however, must be considered in light of Habbinga’s substantial
criminal history for similar offenses. Habbinga has misdemeanor convictions for carrying a
handgun without a license, possession of paraphernalia, minor consuming alcoholic
beverages, leaving the scene of an accident, possession of marijuana, trespass, public
intoxication, and four misdemeanor convictions for operating while intoxicated. He also has
felony convictions for operating a motor vehicle after being adjudged an habitual traffic
violator and escape. He was found to have violated his probation on five occasions and was
on probation when he committed this offense. Further, several other alcohol-related charges
have been dismissed over the years, showing extensive and ongoing encounters with the
criminal justice system. In light of his extensive criminal history and past failed attempts at
leniency, we cannot say that his twelve-year sentence, a good portion of which will be served
in a community corrections program and on probation, is inappropriate.
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Conclusion
Habbinga may not challenge his convictions on direct appeal following his guilty plea.
He has not established that he was improperly sentenced to a double enhancement. We
remand for the trial court to correct the sentencing order to reflect that two years of the
twelve-year sentence shall be suspended to probation. Regarding the assessment of
aggravators and mitigators, Habbinga has not established that remand is necessary because
we are convinced the trial court would have imposed the same sentence. Finally, Habbinga’s
sentence is not inappropriate. We affirm and remand.
Affirmed and remanded.
BRADFORD, J., and BROWN, J., concur.
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