ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the
FILED
Jun 29 2010, 9:17 am
Indiana Supreme Court CLERK
_________________________________ of the supreme court,
court of appeals and
tax court
No. 49S02-0910-CR-429
MYRON OWENS,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Marion County Superior Court, No. 49G20-0710-FA-224725
The Honorable William Young, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0811-CR-1052
_________________________________
June 29, 2010
Boehm, Justice.
The Indiana habitual offender statute enhances the penalty for crimes by offenders with
two prior unrelated felony convictions, but counts only certain offenses as prior felonies. We
hold that a conspiracy to deal conviction is not equivalent to a dealing conviction for the
purposes of this statute.
Facts and Procedural History
A confidential informant bought twenty dollars worth of crack cocaine from Myron
Owens in a controlled buy. The Indianapolis police maintained audio and visual surveillance of
the transaction, and arrested Owens at its completion. Owens refused to comply with the
officers’ instructions, attempted to eat the cash he was paid for the cocaine, and struggled with
the officers. The transaction took place about 955 feet away from Mount Zion Baptist Church
Daycare Center, which cares for children between the ages of eighteen months and twelve years
and was open at the time of the buy.
A jury convicted Owens of Class A felony dealing in cocaine within 1,000 feet of a youth
program center, Class B felony possession of cocaine, Class D felony escape, Class D felony
obstruction of justice, and Class A misdemeanor resisting law enforcement. The jury also found
that Owens was a habitual offender. Owens’s prior felony convictions were a 1995 conviction
for dealing cocaine, a 1998 conviction for possession of a handgun without a license, and a 2004
conviction for conspiracy to deal. The trial court imposed a fifty-year sentence for the
underlying convictions and added a thirty-year habitual offender enhancement.
Owens appealed. In addition to contesting the sufficiency of the evidence to support his
conviction for dealing cocaine and obstruction of justice, he argues that he did not have the
requisite prior convictions to support the jury’s habitual offender finding. The Court of Appeals
affirmed. Owens v. State, 911 N.E.2d 18, 26 (Ind. Ct. App. 2009). The Court of Appeals held
that Owens had more than one prior because his conviction for conspiracy to deal cocaine
qualified as a prior conviction for “dealing cocaine” under the habitual offender statute. Id. at
23–26. Accordingly, the Court of Appeals affirmed Owens’s habitual offender enhancement.
We granted transfer.
Habitual Offender Enhancement
The Indiana habitual offender statute is codified at Indiana Code Section 35-50-2-8
(2004). Subsection 8(a) provides that the State may seek to enhance a sentence if the defendant
has accumulated two “prior unrelated felony” convictions. Subsection 8(b)(3) limits the
application of this general rule when the instant offense is a drug offense:
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(b) The state may not seek to have a person sentenced as a habitual offender for a
felony offense under this section if:
...
(3) all of the following apply:
(A) The offense is an offense under IC 16-42-19 [legend or
prescription drug offenses] or IC 35-48-4 [controlled substances
offenses].
(B) The offense is not listed in section 2(b)(4) of this chapter
[dealing while possessing a firearm and certain dealing to minors].
(C) The total number of unrelated convictions that the person has
for:
(i) dealing in or selling a legend drug under IC 16-42-19-
27;
(ii) dealing in cocaine or a narcotic drug (IC 35-48-4-1);
(iii) dealing in a schedule I, II, III controlled substance (IC
35-48-4-2);
(iv) dealing in a schedule IV controlled substance (IC 35-
48-4-3); and
(v) dealing in a schedule V controlled substance (IC 35-48-
4-4);
does not exceed one (1).
Subsection 8(d) provides that a prior conviction meeting the same conditions set out in
Subsection 8(b)(3) does not count as a “prior unrelated felony” for purposes of Subsection 8(a).
In other words, if the instant offense falls under Chapter 16-42-19 (legend or prescription drugs)
or Chapter 35-48-4 (controlled substances) and is not one of those specified in I.C. 35-50-2-
2(b)(4) (dealing while possessing a firearm or certain dealing to minors), the State may seek to
enhance the sentence only if defendant has two or more unrelated convictions for a dealing
offense identified in Subsection 8(b)(3)(C). Johnican v. State, 804 N.E.2d 211, 216 (Ind. Ct.
App. 2004). Conspiracy to deal is not explicitly set out in Subsection 8(b)(3)(C). The State
contends that Owens’s conviction for conspiracy to deal is a conviction for dealing for purposes
of this subsection. For the reason explained below, we do not agree that the conspiracy to deal
cocaine qualifies as a dealing conviction under Subsection 8(b)(3)(C). We conclude however
that Owens nonetheless has two unrelated dealing convictions, namely the 1995 dealing
conviction and the instant dealing conviction.
Well-settled Indiana law provides that the conspiracy to commit a felony is a distinct
offense from the contemplated felony. Lane v. State, 259 Ind. 468, 472, 288 N.E.2d 258, 260
(1972). The crime of conspiracy to commit a felony has three elements: “1) the intent to commit
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a felony, 2) an agreement with another person to commit a felony, and 3) an overt act, performed
by either the defendant or the person with whom the defendant has entered into the agreement.”
Jester v. State, 724 N.E.2d 235, 239 (Ind. 2000) (citing I.C. § 35-41-5-2). A conspiracy “is
complete upon the agreement and the performance of an overt act in furtherance of the
agreement.” Smith v. State, 655 N.E.2d 532, 540 (Ind. Ct. App. 1995), trans. denied. The overt
act need not rise to the level of a “substantial step” required for an attempt to commit the felony.
Id. at 540 n.12; I.C. § 35-41-5-1. A defendant may therefore be convicted of a conspiracy to
commit a felony without committing the felony and without even an attempt to commit it. See,
e.g., Edward v. State, 753 N.E.2d 618, 621 n.2 (Ind. 2001) (finding that defendant’s leaving in
the car driven by coconspirator the night of the victim’s murder was an overt act in furtherance
of an agreement); Smith, 655 N.E.2d at 540, 548, (finding that defendant’s giving coconspirator
the money to purchase a gun was an overt act sufficient for conspiracy to murder); Hopper v.
State, 539 N.E.2d 944, 946 (Ind. 1989) (finding defendant’s participation in discussions
regarding trading cocaine for marijuana and giving instructions for where to deliver the
marijuana was sufficient to establish conspiracy to deal in cocaine); Lynn v. State, 207 Ind. 393,
399–400, 193 N.E. 380, 383 (1935) (“[T]he offense of conspiracy to commit perjury may be
committed even though none of the steps which are essential elements of the offense of perjury
have been taken.”).
The overt act in furtherance of a conspiracy to deal a controlled substance often also
supports a dealing conviction. E.g., Derado v. State, 622 N.E.2d 181, 182 (Ind. 1993) (delivery
of the contraband), overruled on other grounds by Grinstead v. State, 684 N.E.2d 482 (Ind.
1997). But an overt act that supports a conspiracy conviction may fall short of the possession,
manufacturing, or delivery of a controlled substance necessary for the underlying offense. E.g.,
Huff v. State, 443 N.E.2d 1234, 1238 (Ind. Ct. App. 1983) (upholding a conspiracy to deal
conviction where defendant’s arranging of a drug deal with his suppliers did not result in a
dealing conviction). Because conspiracy to deal is a separate offense and is not listed along with
dealing among the nonsuspendable offenses, Huff held that conspiracy to deal is not
nonsuspendable under I.C. 35-50-2-2. Id. at 1239. We agree and find the same reasoning
applicable here. More generally, conspiracy was viewed as a lesser crime at common law, and
most jurisdictions punish a conspiracy less severely than the target offense. Joshua Dressler,
Understanding Criminal Law § 29.03[A][1], at 460–61 (4th ed. 2006); Model Penal Code § 5.03
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cmt. third at 391 (1985). Penal laws are to be construed strictly. Merritt v. State, 829 N.E.2d
472, 475 (Ind. 2005). We therefore cannot equate conspiracy to deal with the dealing offenses
found in Subsection 8(b)(3)(C). In sum, we hold that a conviction for conspiracy to deal is not
the same as a conviction for dealing for purposes of the general habitual offender enhancement
statute found in I.C. 35-50-2-8.
Here, the State alleges that Owens had three prior unrelated felonies: dealing cocaine in
1995, carrying a handgun without a license in 1998, and conspiracy to deal cocaine in 2004. Of
these felonies, only the 1995 dealing conviction under Section 35-48-4-1 is enumerated in
Subsection 8(b)(3)(C). The statute exempts specified drug offenses when determining the
number of felonies for purposes of habitual offender status, but it denies that exemption to those
with more than one unrelated dealing conviction, whether or not the convictions are prior
unrelated dealing convictions. Peoples v. State, __ N.E.2d __, __ (Ind. 2010). The instant
dealing conviction together with the 1995 dealing conviction “exceed one” dealing conviction.
Owens has therefore accumulated two unrelated and enumerated convictions, and Subsection
8(b) does not prohibit the habitual offender enhancement of Owens’s sentence.
Owens’s convictions for dealing cocaine and obstruction of justice are summarily
affirmed. Ind. Appellate Rule 58(A).
Conclusion
Owens’s convictions and sentence are affirmed.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.
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