MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), May 09 2017, 9:56 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
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
Jeremy K. Nix Curtis T. Hill, Jr.
Matheny, Hahn, Denman & Nix, L.L.P. Attorney General of Indiana
Huntington, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric D. Huffman, May 9, 2017
Appellant-Defendant, Court of Appeals Case No.
90A02-1612-CR-2791
v. Appeal from the Wells Circuit
Court
State of Indiana, The Honorable Kenton W.
Appellee-Plaintiff. Kiracofe, Judge
Trial Court Cause No.
90C01-1512-F4-13
Robb, Judge.
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Case Summary and Issue
[1] Eric Huffman was found guilty by a jury of burglary, theft, and possession of a
firearm. He thereafter admitted to prior convictions that established his status
as a serious violent felon and an habitual offender. The trial court sentenced
Huffman to twelve years for burglary, enhanced by fifteen years due to the
habitual offender finding, to two and one-half years for theft, and to twelve
years for unlawful possession of a firearm by a serious violent felon. All
sentences were ordered to be served consecutively, resulting in a total sentence
of forty-one and one-half years.
[2] Huffman appeals his sentence, raising two issues, of which we find the
following dispositive: whether the trial court erred in ordering his sentence for
unlawful possession of a firearm by a serious violent felon and his enhanced
sentence for burglary to be served consecutively. We conclude and the State
concedes the trial court did err because the habitual offender enhancement to
the burglary sentence and the serious violent felon status are based on the same
prior conviction, and consecutive sentences on those two counts are an
impermissible double enhancement. We therefore reverse and remand to the
trial court to correct Huffman’s sentence.1
1
Huffman’s second appellate issue is whether his forty-one and one-half-year sentence is inappropriate.
Because we reverse this sentence, we need not address this issue.
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Facts and Procedural History
[3] Based on an incident occurring on December 28, 2015, the State charged
Huffman with burglary, a Level 4 felony; theft of a firearm, a Level 6 felony;
and unlawful possession of a firearm by a serious violent felon, a Level 4
felony. The information for unlawful possession alleged Huffman was a serious
violent felon due to a previous conviction for escape, a Class C felony, in cause
number 05C01-1212-FC-452. The State also alleged Huffman was an habitual
offender based on prior convictions for theft in cause number 05C01-0908-FB-
43 and escape in cause number 05C01-1212-FC-452.
[4] A jury found Huffman guilty of burglary, theft, and possession of a firearm.
Huffman then admitted to having prior convictions for escape and theft,
establishing his status as an habitual offender and a serious violent felon. The
trial court sentenced Huffman to the maximum term of twelve years for
burglary, enhanced by fifteen years for the habitual offender finding; the
maximum term of two and one-half years for theft; and the maximum term of
twelve years for unlawful possession of a firearm by a serious violent felon. The
trial court ordered the sentences to be served consecutively, for a total sentence
of forty-one and one-half years.
Discussion and Decision
[5] The general rule regarding multiple sentence enhancements is that the trial
court cannot impose a double enhancement absent express authority from the
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legislature. Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010). Whether a
defendant has been subjected to an improper double enhancement of his
sentence is a matter of law that we review de novo. Schnepp v. State, 768 N.E.2d
1002, 1004 (Ind. Ct. App. 2002), trans. denied.
[6] Huffman contends the trial court erred in ordering his burglary sentence—
enhanced by the habitual offender finding—and his unlawful possession of a
firearm by a serious violent felon sentence to be served consecutively because
the same prior conviction was used to establish his status as both an habitual
offender and a serious violent felon. In Sweatt v. State, 887 N.E.2d 81 (Ind.
2008), our supreme court confronted virtually the same scenario. The
defendant in Sweatt was convicted of burglary and unlawful possession of a
firearm by a serious violent felon. The trial court sentenced the defendant to
twenty years on each count and enhanced the burglary count by thirty years due
to an habitual offender finding. The defendant argued the trial court erred by
using the same prior conviction to sentence him as an habitual offender and to
convict him of unlawful possession of a firearm by a serious violent felon. The
court held using a single prior felony conviction as the basis for a serious violent
felon count and also as grounds for an habitual offender finding does not by
itself create a double enhancement. Id. at 84. The trial court may avoid a
double enhancement problem in that situation by attaching the habitual
enhancement to an offense other than the serious violent felon count so the
enhancements operate on different counts. Id. However, “when counts are
ordered served consecutively this is a distinction without a difference” because
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“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.
[7] The State concedes that Sweatt dictates Huffman’s sentence in this case is
improper. See Brief of Appellee at 11-12. We agree. The finding that Huffman
was an habitual offender was based in part on his prior escape conviction; his
status as a serious violent felon was based on that same escape conviction.
Because the enhancements of two separate counts were based on the same prior
conviction, ordering the sentences to be served consecutively constitutes an
improper double enhancement.
Conclusion
[8] We reverse Huffman’s sentence and remand to the trial court to resentence
Huffman to concurrent terms on the burglary and unlawful possession counts
so as to alleviate the double enhancement.
[9] Reversed and remanded.
Vaidik, C.J., and Bailey, J., concur.
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