May 20 2015, 6:34 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Wieneke Law Office, LLC Attorney General of Indiana
Plainfield, Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Whittaker, May 20, 2015
Appellant-Defendant, Court of Appeals Case No.
84A01-1411-CR-506
v. Appeal from the Vigo Superior
Court.
State of Indiana, The Honorable David R. Bolk,
Judge.
Appellee-Plaintiff.
Cause No. 84D03-1309-FD-2931
Darden, Senior Judge
Statement of the Case
[1] Michael Whittaker appeals his sentence for his conviction of theft, a Class D
felony, Indiana Code section 35-43-4-2 (2009), and his adjudication as an
habitual offender, Indiana Code section 35-50-2-8 (2005). We affirm.
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Issue
[2] Whittaker presents one issue for our review, which we restate as: whether the
savings clause of the 2014 criminal code revision violates the Equal Privileges
and Immunities Clause of the Indiana Constitution.
Facts and Procedural History
[3] In September 2013, the State charged Whittaker with theft and alleged that he
was an habitual offender. Whittaker pleaded guilty to the theft charge and
admitted being an habitual offender in September 2014. The following month
the trial court sentenced Whittaker to 180 days on the theft conviction,
enhanced by eighteen months for his admission to being an habitual offender,
for an aggregate sentence of two years. It is from this sentence that Whittaker
now appeals.
Discussion and Decision
[4] Whittaker contends that the savings clause of the 2014 criminal code revision
violates his rights under the Equal Privileges and Immunities Clause of the
1
Indiana Constitution. Specifically, he argues that the savings clause
1
The State asserts that Whittaker failed to raise this issue before the trial court, and therefore it is waived.
However, our Supreme Court has said that “[e]ven though the general rule is that failure to challenge the
constitutionality of a statute at trial results in waiver of review on appeal, this Court as well as the Court of
Appeals has long exercised its discretion to address the merits of a party’s constitutional claim
notwithstanding waiver.” Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). We exercise our
discretion to do so now.
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improperly prohibits the ameliorative sentencing statutes of the new criminal
code to apply to certain offenders, including himself.
[5] Generally, the sentencing statutes in effect at the time a defendant commits an
offense govern the defendant’s sentence. Marley v. State, 17 N.E.3d 335, 340
(Ind. Ct. App. 2014), trans denied. An exception to this general rule is the
doctrine of amelioration. The doctrine of amelioration entitles a defendant,
who is sentenced after the effective date of a statute providing for more lenient
sentencing, to be sentenced pursuant to that statute rather than the sentencing
statute in effect at the time of the commission or conviction of the crime. Id.
However, the doctrine of amelioration does not apply where the legislature
expressly states in a specific savings clause an intention that crimes committed
before the effective date of the ameliorative amendment should be prosecuted
under prior law. Id.
[6] At the time Whittaker committed these offenses and was charged, the general
crime of theft was a Class D felony, with a sentencing range of six months to
three years. See Ind. Code §§ 35-43-4-2(a) (2009), 35-50-2-7(a) (2013). On July
1, 2014, while Whittaker’s charges were pending, a significant revision of our
criminal code went into effect resulting in, among other things, a change in
terminology from “Class D felony” to “Level 6 felony” and a reduction of the
sentencing range for a Class D/Level 6 felony to a term of six months to two
and one-half years. See Ind. Code § 35-50-2-7(b) (2014). In addition, the
general crime of theft was reduced to a Class A misdemeanor with a maximum
sentence of one year. See Ind. Code §§ 35-43-4-2(a) (2014), 35-50-3-2 (1977).
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At the same time, the General Assembly enacted the following specific savings
clause:
(a) [The new criminal code] does not affect:
(1) penalties incurred;
(2) crimes committed; or
(3) proceedings begun;
before the effective date of [the new criminal code sections].
Those penalties, crimes, and proceedings continue and shall be
imposed and enforced under prior law as if [the new criminal
code] had not been enacted.
(b) The general assembly does not intend the doctrine of
amelioration (see Vicory v. State, 400 N.E.2d 1380 (Ind. 1980)) to
apply to any SECTION [of the new criminal code].
Ind. Code § 1-1-5.5-21 (2014). Recently, a panel of this Court remarked, “[i]t is
abundantly clear from these statutes that the General Assembly intended the
new criminal code to have no effect on criminal proceedings for offenses
committed prior to the enactment of the new code.” Marley, 17 N.E.3d at 340.
[7] Whittaker challenges the constitutionality of this savings clause under the Equal
Privileges and Immunities Clause of the Indiana Constitution. When the
constitutionality of a statute is challenged, we begin with the presumption that
the statute is constitutional. Bennett v. State, 801 N.E.2d 170, 173 (Ind. Ct. App.
2003). The party challenging the statute labors under a heavy burden to show
that it is unconstitutional. Id. at 173-74. All reasonable doubts must be
resolved in favor of the statute’s constitutionality. Id. at 174.
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[8] The Equal Privileges and Immunities Clause states that “[t]he General
Assembly shall not grant to any citizen, or class of citizens, privileges or
immunities, which, upon the same terms, shall not equally belong to all
citizens.” IND. CONST. art. I, §23. In Collins v. Day, our Supreme Court
concluded that Section 23 imposes two requirements on statutes that result in
disparate treatment to differing classes of people: “First, the disparate treatment
accorded by the legislation must be reasonably related to inherent
characteristics which distinguish the unequally treated classes. Second, the
preferential treatment must be uniformly applicable and equally available to all
persons similarly situated.” 644 N.E.2d 72, 80 (Ind. 1994). In determining
whether a statute violates Section 23, we accord substantial deference to
legislative discretion. Id.
[9] Whittaker argues that the savings clause unconstitutionally created two classes
of offenders: those who committed their offenses before the new criminal code
went into effect on July 1, 2014 but were sentenced after that date and those
who committed their offenses after the July 1, 2014 effective date. He
maintains that the date of the offense is not reasonably related to any inherent
characteristic that distinguishes the two classes.
[10] Five years after establishing the two-step analysis in Collins, our Supreme Court
again dealt with Section 23 in Rondon v. State, 711 N.E.2d 506 (Ind. 1999).
There, Rondon’s argument failed under the first prong of the Collins analysis.
However, the court determined that even if Rondon had prevailed under the
first prong, his argument would fail under the second prong because
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“[a]mendments to a law that are coupled with a savings clause do not create
two similarly situated groups of people.” Rondon, 711 N.E.2d at 513.
“‘Criminal statutes apply exclusively to one class of people, those who violate
the law, and they relate to the specific point in time that a violation occurs.’”
Id. (quoting Rivera v. State, 179 Ind. App. 295, 385 N.E.2d 455, 457 (1979)).
Therefore, upon alteration of the criminal law, individuals who subsequently
commit an offense are not similarly situated and cannot be equated to those
who had previously committed an offense. Rondon, 711 N.E.2d at 513. “[T]he
time of a crime is selected as an act of free will by the offender,” and, thus, it is
the criminal, not the State, that chooses which statute applies to his or her
offense. Id. The court further noted it had previously determined that a change
in penal statutes which applies only to those who commit their crimes after its
effective date does not violate one’s equal protection rights. Id. n.7 (citing State
v. Alcorn, 638 N.E.2d 1242, 1245 (Ind. 1994); Vicory v. State, 272 Ind. 683, 400
N.E.2d 1380, 1381-83 (1980)).
[11] Similarly, we need not discuss whether Indiana Code section 1-1-5.5-21 passes
the first prong of the Collins analysis because it clearly fails on the second prong.
Whittaker, in an act of free will, selected his offense date as August 31, 2013,
thereby choosing to commit theft as a Class D felony subject to a sentence of six
months to three years. See Ind. Code §§ 35-43-4-2(a), 35-50-2-7(a). By doing
so, he differentiated himself from those offenders who committed the offense of
theft after July 1, 2014. Thus, we find that Whittaker is not similarly situated to
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those defendants who committed offenses after July 1, 2014, and, therefore, he
has no viable equal privileges and immunities claim.
Conclusion
[12] For the reasons stated, we conclude that the savings clause of the 2014 criminal
code revision does not violate the Equal Privileges and Immunities Clause of
the Indiana Constitution.
[13] Affirmed.
[14] Vaidik, C.J., and May, J., concur.
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