concurring in result.
I continue to hold the view I expressed in Shelton v. State (1986), Ind., 490 N.E.2d 738, that Ind.Code § 35-50-2-8(d) demonstrates legislative intent that all the elements of proof necessary to an habitual offender finding be submitted for a jury determination. In this case, the court's final instructions nos. 33 and 34 invaded the jury's domain by telling them that Ditchley's two priors were felonies. I think that final instruction no. 85 defining a felony would have been proper standing alone. It should be for the jury to determine whether the two priors were felonies just as it is their job to decide whether there were two convictions, whether they were in the proper sequence, whether the defendant before them is the same person, and so on.
Notwithstanding, I see no basis for reversal inasmuch as the two prior convictions were clearly felonies and I join in the Court's decision to affirm.