dissenting.
While I appreciate the logic of the majority's holding that Johnson's 1974 theft conviction is not a class D felony conviction, I disagree with the holding.
Ind.Code 35-50-2-1(a) defines a class D felony for the purposes of the habitual offender statutes as an Indiana class D felony conviction and any felony conviction in any other jurisdiction. By this definition an out-of-state felony conviction is a class D felony regardless of the severity of the offense or the length of the sentence so long as the convicted felon might have been imprisoned for more than one (1) year. Slocumb v. State (1991), Ind.App., 568 N.E.2d 1068. Thus, had Johnson's theft conviction occurred in any other state, it would have been a class D felony conviction.
I seriously doubt this definition reflects the intent of the legislature. It is inconceivable the legislature intended to consider a convicted murderer or rapist from another jurisdiction as having committed a class D felony while an Indiana conviction for either offense could never be a class D felony. The result is that an out-of-state felon is treated much more favorably than is an Indiana felon.
I find it difficult to accept the legislature intended to show favoritism and leniency to out-of-state felons. If it did, it is only because the legislature was unable to arrive at a definition of a class D felony that would encompass convictions in jurisdictions that do not classify felonies consist ently with this State and, accordingly, decided to classify any felony from another jurisdiction as a class D felony. The legislature faced the same situation with reference to felony convictions in this State that occurred before the present classification system was adopted. Surely, had the legislature recognized the similarity, it would have intended Indiana felons receive treatment equal to out-of-state felons.
Therefore, in my opinion, a fair reading of the definition of class D felony conviction mandates the conclusion that Johnson's 1974 theft conviction is a class D felony. It is of no moment whether the legislature misspoke when it enacted the definition of a class D felony for out-of-state convictions or whether it inadvertently failed to address the question of Indiana felony convictions occurring before the legislature adopted the present classification system. In either situation it is absolutely clear the legislature did not intend to treat a felon with an out-of-state conviction differently (Le., more leniently) that an Indiana felon.
Our supreme court has reached a similar conclusion. In Best v. State (1991), Ind. *287566 N.E.2d 1027 the defendant attacked the finding he was an habitual offender within the meaning of IC 85-50-2-8 on the ground all of his prior felonies were class D felonies or equivalents. Best had four prior convictions: theft (1976), burglary (1976), theft (1985), and driving after being found an habitual traffic offender (1985). In responding to Best's argument the court stated "one of the prior crimes relied upon for sentencing was a 1986 [sic] second degree burglary, the equivalent of a class C felony." Best at 1029. Although the court did not elaborate, a reasonable inference is the court concluded second degree burglary, which formerly carried an indeterminate penalty of not less than two years nor more than five years, IC 35-13-4-4(b) (1976), is a class C felony because the comparable offense under the present criminal code is a class C felony, IC 35-48-2-1 (1988) while theft, which formerly carried a possible sentence of not less than one year nor more than ten years, IC 35-17-5-3 (1976), IC 35-17-5-12(1), (8) (1976), is a class D felony because it is presently so classified. IC 35-43-4-2 (1988).
Therefore, I vote to reverse this cause and remand it to the trial court with instructions to the trial court to sentence Johnson pursuant to the habitual class D felony offender statute, IC 835-50-2-7.1.