I concur with the Majority's disposition of Issues I, II and III. However, I dissent to Issues IV and V because I believe Manley's sentence is unconstitutionally disproportionate to the offense, and his trial and appellate counsel were ineffective for failing to challenge its constitutionality.
Art. 1, § 16 of the Indiana Constitution prohibits the imposition of cruel and unusual punishments, and provides that "[all penalties shall be proportioned to the nature of the offense." Because this case involves the proportionality of Manley's habitual offender penalty, two components are relevant to our inquiry: 1) the nature of the present felony; and 2) the nature of the prior felonies committed by this defendant. Clark v. State (1990), Ind., 561 N.E.2d 759, 766.
*283The present felony in this case is carrying a handgun without a license, ordinarily a class A misdemeanor. Because Manley had been convicted of a felony in the previous fifteen year period, his charge was elevated to a class D felony, and he received a four year sentence.1 He was then convicted of being an habitual offender based upon a 1973 conviction for theft of under $100 and a 1979 conviction for robbery, a class B felony. For his habitual offender conviction, he received a thirty-year sentence.
Manley's thirty-year habitual offender sentence is repugnant to art. 1, section 16 of the Indiana Constitution. According to the Indiana Supreme Court:
An enhancement authorized by [the habitual offender] statute that is ultimately based upon a conviction for conduct that the legislature has classified as a misdemeanor, where there is no injury to person or property, is entirely out of proportion to the gravity of the offense.
Clark, supra at 766. In this case, Manley was convicted of carrying a handgun without a license. The General Assembly classified this erime as a misdemeanor, and it by definition involves neither injury to person nor injury to property. Clark is analogous and controls.2
In Clark, our supreme court determined that a thirty-five year sentence for driving while intoxicated was so disproportionate to the nature of the offense as to be unconstitutional. Based on that result, the court found it unnecessary to consider the nature of the predicate felonies. Id. The same holds true for Manley. Manley was convicted of carrying a handgun without a license, a nonviolent act. This misdemeanor was elevated to a class D felony because Manley had two prior felony convictions, one of which was thirteen years old. Based on those same felony convictions, Manley was sentenced to an additional thirty years in prison. The clear dis-proportionality of this sentence makes an examination of Manley's predicate felonies unnecessary.3 Clark, supra.
A consideration of this unjust sentence leads unerringly to the conclusion that Manley's rights guaranteed by the Indiana Constitution were violated. Clark, supra. Trial and appellate counsels' failure to raise the constitutional issue was unreasonable, prejudicial and amounted to ineffective assistance of counsel. I would remand this case to the post-conviction court and order that the thirty-year habitual offender sentence be vacated.4 The Indiana Constitution mandates no less.
Accordingly, I dissent to the Majority's disposition of Issues IV and V.
. The present presumptive sentence for a class D felony is one and one-half years. This sentence may be no more than doubled for aggravating circumstances. IND. CODE § 35-50-2-7(a) (1993).
. The Majority attempts to distinguish Clark on the basis that Manley was accused of shooting at a vehicle prior to his arrest, thus causing property damage. However, the record contains no evidence proving that Manley's actions caused property damage. In fact, the only statements indicating that Manley may have shot the handgun were those of his arresting officers, who testified that they responded to a report of shots fired. No proof of property damage was ever admitted at Manley's trial.
. A consideration of Manley's predicate felonies does not change this result, as those crimes were not particularly aggravated. As previously stated, in 1973 he was convicted of theft of under $100, and in 1979 he was convicted of class B felony robbery. With regard to his robbery conviction, the trial court specifically found mitigating circumstances. Moreover, the Majority places too much weight on Manley's prior misdemeanor convictions, since these factors are not components in our proportionality inquiry. See Clark, supra.
. The Majority concludes that because some habitual offender sentence may have been warranted, and the statute in place when Manley was convicted did not allow for less than a thirty-year habitual offender sentence, Manley's sentence must be constitutional. Op. at 281-282. I find this analysis unpersuasive, as it implies that this court has no alternative but to sanction a disproportionate sentence based on the lack of statutory alternatives. It is well established that a statute may be constitutional on its face and unconstitutional as applied to a particular defendant. Clark, supra at 765. Such is the case here.