concurring in part and dissenting in part.
I concur that there is sufficient evidence to support Goodman’s convictions. I respectfully dissent, however, from the conclusion that his sentence for Class C felony auto theft cannot be enhanced under the general habitual offender statute, Indiana Code Section 35-50-2-8. Because in another life I filed the enhancements that were overturned in Stanek, my attention has focused on these sorts of cases over the years.
I cannot read Downey as being helpful in this case because it did not have to apply the general habitual offender statute at all, let alone the 2001 amendments to that statute. Although the opinion briefly discusses the general habitual offender statute, the case turned upon application of the habitual substance offender statute, Indiana Code Section 35-50-2-10, to a sentence for Class D felony possession of marijuana with a prior conviction. See Downey, 770 N.E.2d at 798. The only mention of the 2001 amendments to the general habitual offender statute is found in a footnote, where the court states, “As best as we can determine,” the legislature had moved to reduce the number of crimes for which habitual offender enhancements would be possible. Id. at 797 n. 5. I respectfully submit that this language is dictum that was in no way necessary to the outcome or analysis of the case, nor was there any reason for the legislature to respond to such vague language that lacks any practical effect.
I believe the legislature spoke clearly and definitively when it amended the general habitual offender statute in 2001 so that it states, “Except as otherwise provided by this section, the state may seek to have a person sentenced as a habitual offender for any felony....” Ind.Code § 35-50-2-8(a) (emphases added). This case does not fall within any of the exceptions for application of the general habitual offender statute listed in subsection (b) of that statute.
It contravenes clear legislative intent to prohibit application of the general habitual offender statute in a case not falling under one of the exceptions to the statute. Class C felony auto theft is “any felony” and it does not fall under one of the express exceptions. I vote to affirm the habitual offender enhancement of Goodman’s sentence.