concurring and dissenting.
I respectfully concur with the majority in affirming the three convictions and the underlying sentences imposed with respect to each.
I respectfully dissent from the majority opinion wherein it affirms the verdict of the jury finding appellant to be a habitual offender. I remain convinced that this Court's holding in Miller v. State (1981), 275 Ind. 454, 417 N.E.2d 339, commands reversal in circumstances like this. See also, Richards v. State (1989), Ind., 535 N.E.2d 549, 551 (DeBruler, J., dissenting).
A thirty year addition to a felony sentence, because the person to be sentenced has accumulated two prior unrelated felony convictions is a large dose of penal medicine. It is so large that the legislature has mandated that the defendant is entitled to a trial by jury on a charge of being a habitual offender where the standard of proof is the very highest, i.e., beyond a reasonable doubt. This is the protection provided our most sacred rights. In so doing the legislature has mandated that the determination of habitual offender have the same integrity as the determination of guilt itself. Indeed, the defendant is even entitled to an instruction at the trial on habitual offender allegations informing the jury of its constitutional power under Article 1, Section 19 of the Indiana Constitution to determine the law as well as the facts. Clark v. State (1990), Ind., 561 N.E.2d 759.
When, as here, the prosecution states four specific prior convictions in its charge, and at trial makes proof of each, and the jury takes that charge of four and that proof of four to the jury room, and emerges with a general verdict that the defendant is a habitual offender, such verdict may rest upon any one of six separate combinations of convictions. Because two of the convictions are not in proper sequential relationship, one of the six combinations does not provide a factual basis for the jury verdict. Where is the assurance that such is not the case? If there is no instruction expressly prohibiting the combination of the two, or there is no special verdict form, as there is not in this case, then that assurance resides if at all in the general instructions defining habitual offender status and its constituent elements, and the ability of the jury to carefully apply the criteria in them.
In Miller v. State, supra, two of four alleged prior convictions were improper because the defendant had not yet been sentenced on them. The prosecution sought to prove all four, and the possibility of all four was carried to the jury room. A general verdict was returned. In reversing, this Court said:
"Notwithstanding that competent evidence was admitted to support a finding that the defendant 'had accumulated two (2) prior unrelated felony convictions,' under this state of the record, it can not be discerned which of the four alleged prior convictions provided the factual basis for the jury's determination."
Miller, 275 Ind. at 460, 417 N.E.2d at 343. The state of the record in Miller, included general instructions defining habitual offender status and its elements,. It may properly be deduced that such general jury instructions did not satisfy this Court that *133the jury rejected the two invalid prior convictions, though the invalidity of the convictions was discernible by the jury under its instructions. It therefore follows logically, that the general instructions defining habitual offender status and its constituent elements in the case at bar do not provide an adequate assurance that the jury rejected the invalid combination of convictions. This verdict finding appellant to be a habitual offender is tainted and I would set it aside.