ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joseph M. Cleary Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court Jun 16 2009, 12:58 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
No. 20S04-0810-CR-561 tax court
BYRON BREASTON,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________
Appeal from the Elkhart Superior Court, No. 20D01-0607-FD-66
The Honorable Evan Roberts, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 20A04-0712-CR-727
_________________________________
June 16, 2009
Sullivan, Justice.
Following unrelated criminal trials, Byron Breaston received habitual offender enhance-
ments to his sentences. He was ordered to serve these habitual offender enhancements consecu-
tively. Starks v. State held that it was improper for the trial court to order consecutive habitual
offender enhancements at a single criminal trial. 523 N.E.2d 735, 737 (Ind. 1988). Smith v.
State applied this holding to separate sentencing proceedings. 774 N.E.2d 1021, 1024 (Ind. Ct.
App. 2002), trans. denied. As such, it was incorrect to impose consecutive habitual offender en-
hancements in the present case.
Background
In December, 2003, Byron Breaston was convicted of Class D felony theft and sentenced
to two years. Breaston was placed on work release, but on February 1, 2004, he did not return to
detention. Breaston was apprehended and charged with, and ultimately convicted of, Class D
felony escape and being a habitual offender. On November 17, 2004, he was sentenced to three
years for the felony escape conviction, enhanced by four and one-half years for being a habitual
offender.1
The instant case arises from a different set of charges. On February 18, 2004, the State
charged Breaston with theft, a Class D felony, and being a habitual offender. A jury found
Breaston guilty of both counts. On November 29, 2004, he was sentenced to three years for the
theft conviction, enhanced by four and one-half years due to the habitual offender finding. These
sentences, including the new habitual offender enhancement, were ordered to be served consecu-
tively to the prior habitual offender enhancement. Breaston appealed.
Breaston argued that Smith dictates that the imposition of consecutive habitual offender
enhancements is improper, even where the enhancements arise from separate and unrelated trials
or sentencing hearings. Breaston v. State, 893 N.E.2d 6, 15 (Ind. Ct. App. 2008) (citing Smith,
774 N.E.2d at 1024). The Court of Appeals rejected Breaston’s contention. It held that Ind.
Code § 35-50-1-2(d), which requires the defendant’s sentences to be served consecutively under
certain circumstances, mandated consecutive habitual offender enhancements here. Breaston,
1
On March 6, 2006, Breaston filed a petition for post-conviction relief, arguing, inter alia, that one of the
underlying predicate offenses used to support his habitual offender enhancement did not meet the statuto-
ry requirements. The post-conviction court granted relief. On appeal, the Court of Appeals reversed on
grounds of absence of prejudice because it found that Breaston had other valid predicate offenses that
would support the habitual offender enhancement. Breaston v. State, 894 N.E.2d 1110 (Ind. Ct. App.
2008) (table), trans. denied.
2
893 N.E.2d at 15. Breaston petitioned for, and we granted, transfer. Breaston v. State, 898
N.E.2d 1227 (Ind. 2008) (table).
Breaston raised numerous other issues before the Court of Appeals. We only address the
issue of whether the habitual offender enhancements may be ordered to be served consecutively.2
Discussion
Indiana Code § 35-50-2-8, the habitual offender statute, provides that a person is a habi-
tual offender if the jury or the court finds that the person “has accumulated two (2) prior unre-
lated felony convictions.” The State must prove beyond a reasonable doubt that the person ac-
cumulated two prior unrelated felony convictions. I.C. § 35-50-2-8(g).
Indiana Code § 35-50-1-2 governs the authority of courts to order consecutive sentences.
This court has previously faced the question of whether this statute requires consecutive sen-
tences for multiple habitual offender counts. See Starks, 523 N.E.2d at 735. In Starks, the trial
court sentenced defendant on multiple theft convictions and imposed a 30 year habitual offender
enhancement on each of two of those convictions, to be served consecutively. Id.
We held that it had been improper for the trial court to have ordered the sentences for the
two habitual offender enhancements to be served consecutively. Id. at 737. We noted that I.C. §
35-50-2-8 provides that a person may be sentenced as a habitual offender for “any” felony. Id. at
736. We further noted that subsection (e) of the statute, which addresses the length of the en-
hancement, does not explicitly exclude the possibility of multiple applications of the section. Id.
2
The issues Breaston raised on appeal were whether: (1) the trial court erred in denying his request for a
mistrial; (2) the evidence was insufficient to support the finding that he was a habitual offender; (3) the
trial court erred when it allowed the State to amend the habitual offender enhancement information; (4)
sentences resulting from separate findings that one is a habitual offender in separate criminal proceedings
may be served consecutively to one another; (5) the trial court erred in admitting certain evidence at trial;
and (6) the trial court erred in denying his motion to dismiss. Breaston, 893 N.E.2d at 9. We summarily
affirm the decision of the Court of Appeals as to issues not addressed in this opinion. Ind. Appellate Rule
58(A)(2).
3
Nevertheless, we determined that consecutive habitual offender sentences were improper. Id. at
737.
Indiana Code § 35-50-1-2 provides that a court has discretion to determine whether terms
of imprisonment are to be served concurrently or consecutively. In Starks, we discussed the pol-
icies that distinguish the power to impose consecutive sentences and the power to enhance sen-
tences based on a finding of habitual offender status:
The provision appears unlimited in scope, applying to the class of all sentences.
Yet the power to order consecutive sentences is subject to the rule of rationality and
the limitations in the constitution. The sentence enhanced under the habitual of-
fender statute is a special statutory one. It can have the dramatic effect of increas-
ing a single sentence from two years to half a lifetime. A basis for such a gross im-
pact is the existence of the two prior unrelated felony convictions and sentences,
and the dangerous nature of the offender which they bespeak. A basis for the gross
impact which consecutive sentences may have is, by contrast, the moral principle
that each separate and distinct criminal act deserves a separately experienced pu-
nishment. Furthermore the habitual offender status determination carries a more
binding effect upon the sentence tha[n] does the determination of multiple criminal
acts. Therefore, the purpose and process of the felony habitual offender statute has
special and distinct dimensions.
In sum, it is apparent, from a study of the present statutes, that such statutes
are silent on the question of whether courts have the authority to require habitual
offender sentences to run consecutively, when engaged in the process of meting out
several sentences. In the absence of express statutory authorization for such a tack-
ing of habitual offender sentences, there is none.
523 N.E.2d at 736-37.
Since Starks, the Court of Appeals has also addressed the issue of whether consecutive
habitual offender sentences are proper. In Smith, the trial court ordered habitual offender sen-
tences to be served consecutively. 774 N.E.2d at 1024. The Court of Appeals found that impos-
ing consecutive habitual offender enhancements was improper, even where the enhancements
arose from separate and unrelated trials or sentencing hearings. Id. The court relied on its hold-
ing in Ingram v. State, 761 N.E.2d 883, 885-86 (Ind. Ct. App. 2002) (holding that consecutive
sentencing on two habitual offender enhancements resulting from two different causes but sen-
4
tenced in a single sentencing proceeding was improper under Starks), to conclude Starks also
covers separate sentencing proceedings. Smith, 774 N.E.2d at 1024. The court found no reason-
ing to distinguish consecutive habitual offender enhancements in situations where the sentencing
takes place in separate proceedings from those where it occurs in a single proceeding. Id. We
agree.
Under Indiana law, a trial court cannot order consecutive habitual offender sentences.
Starks, 523 N.E.2d at 737; Weaver v. State, 676 N.E.2d 22, 27 (Ind. Ct. App. 1997) (reversing
and remanding defendant’s two consecutive habitual offender sentence enhancements with in-
structions to resentence defendant as a habitual offender on only one of the convictions), trans.
denied. This holds true whether the concurrent enhanced sentence is imposed in a single pro-
ceeding or in separate proceedings. Smith, 774 N.E.2d at 1024. In the more than two decades
since this Court issued Starks, the relevant portions of the consecutive sentencing statute has re-
mained unchanged. Both stare decisis and legislative acquiescence support this result.
We acknowledge a factual distinction between this case and the precedents just dis-
cussed. Unlike those cases, Breaston committed the crime with respect to which the second ha-
bitual offender enhancement was imposed after being arrested for, but before, being discharged
from the first.
Indiana Code § 35-50-1-2(d) provides that:
If, after being arrested for one (1) crime, a person commits another crime:
(1) before the date the person is discharged from probation, parole, or a
term of imprisonment imposed for the first crime; or
(2) while the person is released:
(A) upon the person’s own recognizance; or
(B) on bond;
the terms of imprisonment for the crimes shall be served consecutively, regardless
of the order in which the crimes are tried and sentences are imposed.
5
The Court of Appeals held that this provision mandates that, in the “after being arrested”
circumstance, not only the sentences on the instant offenses, but also any habitual offender en-
hancements imposed with respect thereto, must be imposed consecutively.3
We find this to be a respectable position but ultimately disagree with our colleagues. The
language of I.C. § 35-50-1-2(d) was enacted by the Legislature in 1987. 1987 Ind. Acts 3039,
Pub. L. No. 330, § 1.4 As such, the statute was in its present form when this Court wrote Starks
in 1988. As quoted above, Starks held that “[i]n the absence of express statutory authorization
for . . . a tacking of habitual offender sentences, there is none.” 523 N.E.2d at 737. We hold that
this principle applies in the “after being arrested” circumstance of I.C. § 35-50-1-2(d). The sta-
tute does not expressly authorize multiple habitual offender enhancements to be imposed conse-
cutively.
In Starks, we recognized that the “special and distinct dimensions” of the habitual of-
fender enhancement precludes a trial court from ordering habitual offender sentences to run con-
secutively. The trial court in this case erred when it ordered the habitual offender sentences to
run consecutively.
Conclusion
We reverse the trial court’s imposition of consecutive habitual offender enhancements,
and remand this case to the trial court with instructions that the trial court order the habitual of-
fender enhancement in this case to be served concurrently with the prior enhancement and to re-
sentence Breaston in accordance with this opinion. No hearing is required. In all other respects,
we summarily affirm the opinion of the Court of Appeals, pursuant to App. R. 58(A)(2).
Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.
3
The Court of Appeals adopted this analysis sua sponte; the State did not make this argument to the Court
of Appeals, nor did the State file a response to Breaston’s petition to transfer.
4
This language was added to I.C. § 35-50-1-2 by the General Assembly in 1987. 1987 Ind. Acts 3039,
Pub. L. No. 330, § 1. The subsection was redesignated as subsection (d) in 1995 without substantive
change. 1995 Ind. Acts 4168, Pub. L. No. 304, §1.
6