FILED
Apr 19 2017, 8:05 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian J. Johnson Curtis T. Hill, Jr.
Danville, Indiana Attorney General of Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Matthew L. Johnson, April 19, 2017
Appellant-Defendant, Court of Appeals Case No.
32A05-1604-CR-703
v. Appeal from Hendricks Superior
Court.
The Honorable Mark A. Smith,
State of Indiana, Judge.
Appellee-Plaintiff. Cause Nos. 32D04-1508-F2-18,
32D04-1507-F4-18
Shepard, Senior Judge
[1] New legislation limits the use of lower-level felony convictions in determining
whether a new crime can be sentenced under the habitual offender scheme. We
apply our best reading of these recent amendments to the case of appellant
Matthew L. Johnson.
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Facts and Procedural History
[2] Johnson brings this interlocutory appeal from the trial court’s order denying his
objection to habitual felony offender enhancement charges. The State has
charged Johnson under two cause numbers. One case alleges seven felonies
that range from Level 2 to Level 6. The other alleges three felonies, ranging
from Level 4 to Level 6. The State filed identical habitual offender allegations
in each cause. The habitual allegation was that Johnson had been convicted of
Class D felonies in 2001, 2005, 2006, and 2008. Johnson objected to the
habitual counts on grounds that under new legislation all lower-level felonies
must have occurred during the last ten years. The trial court overruled his
objection, and certified this new question of criminal law for interlocutory
appeal.
Analysis
[3] This novel sentencing question requires statutory interpretation, and as such
presents a question of law reviewed de novo. Sloan v. State, 947 N.E.2d 917
(Ind. 2011). The primary goal of statutory interpretation is to effectuate
legislative intent. Allen v. Allen, 54 N.E.3d 344 (Ind. 2016). In criminal cases,
where we are attempting to fulfill legislative intent, we also incorporate the rule
of lenity—interpreting the statute in the defendant’s favor to the extent the
language can provide such support. Day v. State, 57 N.E.3d 809 (Ind. 2016).
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[4] Indiana’s provisions on enhancing standard sentences for felonies have evolved
over time from a statute that was both strict and simple, to the versions before
us in this case.
[5] The original version of the habitual charge said rather straightforwardly:
The state may seek to have a person sentenced as an habitual
offender for any felony by alleging, on a page separate from the
rest of the charging instrument, that the person has accumulated
two (2) prior unrelated felony convictions. A person who is
found to be an habitual offender shall be imprisoned for an
additional fixed term of thirty (30) years, to be added to the fixed
term of imprisonment imposed under section 3, 4, 5, 6, or 7 of
this chapter. Ind. Code § 35-50-2-8; P.L. 340-1977, SEC. 121.
[6] Our supreme court resolved a challenge to the definition of “unrelated,”
making clear in Erickson v. State, “The term ‘unrelated felony’ does not mean a
felony of unlike kind, but [rather] not related to the instant felony in the sense
that it is not connected to it as part of the res gestae of the instant crime.” 438
N.E.2d 269, 273 (Ind. 1982). If so, the trial court was directed to add a flat
thirty years to whatever sentence it imposed for the current crime.
[7] Subsequent versions of the habitual offender law authorized trial courts to add
fewer than the thirty-year standard term. Beginning with Public Law 210-1980,
SEC. 1, courts were given discretion to reduce the thirty-year habitual offender
term by up to twenty-five years if ten years or more had elapsed since the
offender was discharged from probation, imprisonment, or parole for the last
prior unrelated felony conviction and the date he committed the instant felony
offense.
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[8] Later, in 1985, the statute was amended to provide further deductions from the
flat thirty-year enhancement. Public Law 328-1985, SEC. 2, amended the
statute to provide that if at least one of the prior unrelated offenses was a Class
D felony, then the trial court could subtract up to ten years from the additional
fixed term. If the instant offense for which the defendant was being sentenced
was also a Class D, then the court was permitted to subtract up to twenty years
from the additional fixed term. Id. However, if the offender was found to be an
habitual offender, the court was required to sentence the offender to at least an
additional fixed term of five years. Id. Additional amendments to the statute in
Public Law 1-1990, SEC. 353, led to the same sentencing result.
[9] Further amendment led to capping the habitual add-on at a proportion of the
maximum sentence for which the instant felony could result. For instance,
Public Law 165-1993, SEC. 13 provided that the sentence for an habitual
offender finding would be “not less than the presumptive sentence for the
underlying offense nor more than three (3) times the presumptive sentence for
the underlying offense. However, the additional sentence may not exceed thirty
1
(30) years.”
[10] The most recent amendments likewise reflect a continuation of the policy trend
evidenced in the changes we have just mentioned. In general, lower level prior
1
In contrast, nonetheless, the statute was amended in Public Law 140-1994, SEC 14., to include a provision
for life imprisonment for those defendants found to be violent habitual criminals for committing certain
statutorily defined offenses, comprising the underlying offense and the prior unrelated offenses. That
provision of the statute was later deleted. P.L. 306-1995, SEC.1.
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felonies are less forceful in habitual calculation. And, pertinent to this case,
there are time limits on how distant they can be from the instant offense.
[11] The current rule for Murder and Level 1-4 felonies, for example, is that a
defendant is an habitual offender if the State proves beyond a reasonable doubt
that the offender has been convicted of two prior unrelated felonies and at least
one of the prior unrelated felonies is not a Level 6 felony or Class D felony.
Ind. Code § 35-50-2-8 (2015).
[12] For Level 2 to Level 4 felony offenses, the State must prove beyond a
reasonable doubt that the person has been convicted of two prior unrelated
felonies of which at least one is not a Level 6 or Class D felony. Similarly, for a
Level 5 felony, the State must prove beyond a reasonable doubt that the person
has been convicted of two prior unrelated felonies, at least one of which is not a
Level 6 or Class D felony; however, if one of the alleged prior unrelated felonies
is a Level 5 or 6, or Class C or D felony, not more than ten years must have
elapsed between the time the person was released from imprisonment,
probation or parole, whichever is latest, and the time the person committed the
current offense. Ind. Code § 35-50-2-8(c).
[13] A number of Johnson’s felony offenses are at Level 6, and the version of the
statute that was in effect at the time of the July 31, 2015 offenses read as
follows:
(d) A person convicted of a felony offense is a habitual offender if
the state proves beyond a reasonable doubt that:
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(1) the person has been convicted of three (3) prior unrelated
felonies; and
(2) if the person is alleged to have committed a prior unrelated:
(A) Level 5 felony;
(B) Level 6 felony;
(C) Class C felony; or
(D) Class D felony;
not more than ten (10) years have elapsed between the time the
person was released from imprisonment, probation, or parole
(whichever is latest) and the time the person committed the
current offense.
2
Ind. Code § 35-50-2-8 (d) (2015). The only difference between the prior
version of the statute, applicable to the May 27, 2015 offenses, and the version
applicable to the July 31, 2015 offenses, is the replacement of “a Level 6
offense” for “a felony offense.” Compare Ind. Code § 35-50-2-8(d) (2014) with
Ind. Code § 35-50-2-8(d) (2015).
[14] Johnson’s position has been that the statute requires that each lower level
unrelated felony conviction meet the ten-year requirement.
2
Here, there was an amendment to the habitual offender enhancement statute effective July 1, 2015.
Johnson’s underlying offenses straddle that date, although the amendment does not appear to affect our
analysis. An habitual offender finding determines an offender’s status, which is attached to the underlying
crime. Grundy v. State, 38 N.E.3d 675 (Ind. Ct. App. 2015), trans. denied. An habitual offender finding is “an
enhancement of the sentence for the underlying crime to which it is attached.” Bauer v. State, 875 N.E.2d
744, 747 (Ind. Ct. App. 2007), trans. denied. Further, the sentencing statutes in effect at the time the
defendant committed the offense govern the defendant’s sentence. Marley v. State, 17 N.E.3d 335 (Ind. Ct.
App. 2014), trans. denied.
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[15] The State has argued that only one of the prior unrelated felony convictions
need fall within the ten-year period in order to proceed with all of the
allegations of the habitual offender determination. It focuses on the statutory
language of (d)(2)—if the person is alleged to have committed a prior unrelated
Level 5 or 6, or Class C or D felony. Appellant’s App. p. 61. The State has
further argued that the statute “only requires that a conviction (or released from
3
imprisonment probation or parole) be within in[sic] ten (10) years.” Id.
[16] The actual words of the statute do not actually mandate either of these
outcomes in any visible way.
[17] We conclude that the long-term visible policy has turned on two kinds of
changes: (1) reducing the impact of prior offenses of lower rank, and (2)
reducing the impact of convictions entered quite some years ago. Put another
way, the general thrust is that individuals who committed lesser offenses and
then stayed clean for long periods do not face enhancements of the same
4
severity as under habitual statutes in their earlier form.
3
On appeal, the State reframes the argument as the statute only requires “one of the lower level unrelated
felonies to have occurred—or be subject to prison, probation, or parole—within the last ten years.”
Appellee’s Br. p. 8.
4
While the sentencing law in effect at the time of the commission of the crime governs the outcome of a
sentencing issue, our legislature has just recently voted to amend the habitual statute in a way that actually
could explicitly alter the code to permit limited use of older convictions. The Governor signed the bill on
March 29, 2017, with an effective date of July 1, 2017. P.L. 12-2017 (H.E.A. 1064). Of course, we resolve
Johnson’s appeal under the plain language of the current statute.
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[18] Thus, consistent with this apparent trend in legislative policy and with the rule
of lenity, we interpret the statute to work as follows: convictions from which
the offender was released more than ten years before the current offense do not
count for habitual purposes under section 8(d). Those from which the offender
was released less than ten years before the current offense do count for habitual
purposes.
[19] It is apparent that one or another of the offenses alleged in the habitual count
are not available for one or more of Johnson’s ten current felonies. Thus, as
this matter returns to the trial court, it will be necessary to examine each of the
priors as eligible for habitual purposes as respects each of the ten current
charges. This analysis will also necessitate an examination of an issue already
recognized by the trial court—the dates upon which Johnson was released from
each of his prior offenses.
Conclusion
[20] We reverse the trial court’s order overruling Johnson’s objection to the habitual
offender enhancement charges and remand for review consistent with this
opinion.
[21] Reversed and remanded.
Robb, J., and Barnes, J., concur.
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