concurring.
I agree with the majority's determination that the trial court was prohibited from suspending any part of Devaney's sentence of four and one-half years for his convietion of operating a vehicle while intoxicated with a prior conviction (Count III). This determination is required by the doctrine of "law of the case" and by the supreme court's judgment in the mandamus proceeding that Charlee D. Devaney be resen-tenced in this cause "without suspending any portion of the habitual substance offender sentence enhancement."1 Record at 106. However, without that determina*390tion, there is no statutory impediment to the trial court's action.
The State's reliance on the statutory construction maxim expressio unius est exclu-sto alterius is unavailing. The rejoinder to the State's argument that if the legislature had meant to make the enhancement sus-pendible it would have done so explicitly is that if the legislature had meant to make the enhancement nonsuspendible it would have done so explicitly as it has in IC 35-50-2-2 (1991 Supp.). The State's analogy to the habitual offender statute is similarly inappropriate. As the supreme court acknowledged in State v. Williams (1982), Ind., 430 N.E.2d 756, 758, there is a statutory prohibition against suspending a sentence enhanced because of a habitual offender determination. A habitual offender enhancement requires a prior unrelated felony conviction and under the provisions of IC 35-50-2-2 as it existed at the time of the decision in State v. Williams, "[the court may suspend any part of a sentence for a felony unless: (1) The person has a prior unrelated felony conviction." IC 85-50-2-2 (Burns' 1979).
Finally, I disagree with the majority's conclusion that the "plain language and purpose of the statute precludes suspension," supra, based upon the statutory mandate that the court "shall" sentence the defendant to an additional term. The statutes setting forth the sentences for all felonies and misdemeanors provide for a "shall" term of imprisonment. Nevertheless, unless there is a specific statutory provision to the contrary, these "shall" terms of imprisonment may be suspended. IC 35-50-2-2(a) (1991 Supp.) ("'The court may suspend any part of a sentence for a felony, except as provided in this section or in section 2.1 of this chapter."); IC 85-50-3-1(a) (1988) ("The court may suspend any part of a sentence for a misdemeanor.").
. - In referring to the "habitual substance offender sentence enhancement," the supreme court