State v. Downey

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Plaintiff, State of Indiana (State), appeals the trial court's interlocutory order granting Appellee-Defendant Brian W. Downey's (Downey) motion to dismiss the State's habitual substance offender information.

We affirm.

ISSUE

The State raises the following issue on interlocutory appeal: whether the trial court properly dismissed the State's habitual substance offender count against Dow-ney.

FACTS AND PROCEDURAL HISTORY

On December 6, 1999, the State charged Downey with Count I, possession of marijuana, as a Class A misdemeanor, Ind. Code § 35-48-4-11; Count II, possession of marijuana while having a prior marijuana conviction, as a Class D felony, Ind. Code § 35-48-4-11; Count III, reckless possession of paraphernalia, a Class A misdemeanor, Ind.Code § 35-48-4-8.3; and Count IV, information of habitual substance offender, Ind.Code § 85-50-2-10. Specifically, the information for Count II, possession of marijuana with a prior marijuana conviction, a Class D felony, reads in pertinent part as follows:

On or about the 18th day of November, 1999, in Tippecanoe County, State of Indiana, Brian W. Downey did knowingly or intentionally possess marijuana, pure or adulterated, while having a prior conviction involving marijuana, to wit: Possession of Marijuana, in the White Superior Court (91D01-9308-CM-410), White County, State of Indiana, on or about the 19th day of October, 1998. ...

(R. 9). Additionally, the information for Count IV, habitual substance offender reads in pertinent part as follows:

Brian W. Downey, having committed a substance offense as alleged in Counts I and II, is an Habitual Substance Offender for the reason that said Brian W. Downey has accumulated at least two *376prior unrelated substance offense con-viections, to wit:
On or about the 20th day of April, 1990, the said Brian W. Downey was convicted in the Newton Superior Court, Newton County, State of Indiana, of the offense of operating While Intoxicated, a substance offense, committed in Newton County, State of Indiana, on or about the 13th day of April, 1990, for which conviction the said Brian W. Downey was sentenced on or about the 20th day of April, 1991;
Further, on or about the 19th day of October, 1998, the said Brian W. Dow-ney was convicted in the White Superior Court, White County, State of Indiana, of the offense of Possession of Marijuana, a substance offense. Committed in White County, State of Indiana, on or about the 14th day of August, 1998, for which conviction the said Brian W. Dow-ney was sentenced on or about the 19th day of October, 19983;
Further, on or about the 25th day of September, 1995, the said Brian W. Downey was convicted in the Tippecanoe County Court, Tippecanoe County, State of Indiana, of the offense of Operating While Intoxicated While Having a Prior Conviction for Operating While Intoxicated, a substance offense, committed in Tippecanoe County, State of Indiana, on or about the 8th day of July, 1994, for which conviction the said Brian W. Dow-ney was sentenced on or about the 25th day of September, 1995. ...

(R. 12).

On July 14, 2000, Downey filed a Motion to Dismiss Information of Habitual Substance Offender, claiming that the underlying information for possession of marijuana, as a Class A misdemeanor, once elevated to a Class D felony due to a prior marijuana conviction, cannot again be enhanced under the general Habitual Substance Offender statute.

The trial court conducted a hearing on Downey' motion to dismiss on August 1, 2000. At the hearing, the State orally moved to amend the Habitual Substance Offender information to strike the White County conviction for possession of marijuana from the allegation, but the trial court denied that motion. Following the hearing, the trial court granted Downey's motion and dismissed the Habitual Substance Offender count.

On August 2, 2000, the State filed a praecipe for the transcript of the hearing on Downey's motion to dismiss. On August 16, 2000, the State filed a Motion to Correct Errors and a Motion to Certify Questions for Interlocutory Appeal. On August 24, 2000, the trial court granted the State's Motion to Certify Questions for Interlocutory Appeal.

On October 23, 2000, this court granted the State's Petition for Interlocutory Appeal, and accepted jurisdiction of this appeal.

DISCUSSION AND DECISION

The State argues that the trial court improperly dismissed the habitual substance offender information prior to trial because the legislature intended to permit double enhancement for marijuana possession: onee to a Class D felony for a prior marijuana conviction, and an additional enhancement under the habitual substance offender statute. On the other hand, Dow-ney argues that the trial court properly dismissed the habitual substance offender count because the State was prohibited from enhancing Downey's marijuana possession charge a second time under the habitual substance offender statute. Specifically, Downey contends that the State could only enhance his charge onee to a Class D felony, under the more specific *377marijuana possession statute, rather than once again, under the more general habitual substance offender statute. We agree.

A person commits the crime of possession of marijuana when:

A person who: (1) knowingly or intentionally possesses (pure or adulterated) marijuana, hash oil, or hashish; (2) knowingly or intentionally grows or cultivates marijuana; or (8) knowing that marijuana is growing on his premises, fails to destroy the marijuana plants; commits possession of marijuana, hash oil, or hashish, a Class A misdemeanor. However, the offense is a Class D felony (i) if the amount involved is more than thirty (80) grams of marijuana or two (2) grams of hash oil or hashish, or (i) if the person has a prior conviction of an offense involving marijuana, hash oil, or hashish.

Ind.Code § 35-48-4-11. Additionally, the State may seek an habitual substance offender determination for any substance offense "by alleging ... that the person has accumulated two (2) prior unrelated substance offense convictions." Ind.Code § 35-50-2-10(b). A person is an habitual substance offender if the State proves beyond a reasonable doubt that the person has accumulated two (2) prior unrelated substance offense convictions. Ind.Code § 35-50-2-10(e).

Here, the State charged Downey with possession of marijuana as a Class D felony because Downey had a prior unrelated conviction involving marijuana including his present charge of marijuana possession, as a Class A misdemeanor. The State also charged Downey with being a habitual substance offender because Dow-ney had accumulated at least two prior unrelated substance offense convictions.

Downey relies on our supreme court's decision in Ross v. State, 729 N.E.2d 113 (Ind.2000), for the proposition that a conviction enhanced under its own specific enhancement scheme may not be further enhanced under the habitual substance offender statute. In that case, the defendant was convicted of a misdemeanor violation of Indiana's handgun statute. Id. at 114. Further, because the defendant had an earlier felony conviction, his misdemeanor conviction was enhanced to a Class C felony. Id. Finally, the trial court found that the defendant was an habitual offender and added a penalty under the general habitual offender statute. Id. The defendant argued that it was improper to sentence him under two different sentence enbancement schemes, and our supreme court agreed, holding that:

In light of the statutory construction favoring more specific statutes as opposed to more general ones ... a misdemeanor conviction under the handgun statute, onee elevated to a felony due to a prior felony conviction, should not be enhanced again under the general habitual offender statute.

Id. at 117.

In Ross, our supreme court determined that the issue was whether a conviction once enhanced by the specific sentencing scheme of the handgun statute can be enhanced again by the general habitual offender statute. Id. at 116. Further, the court found that the habitual offender statute can be viewed as being as broad as the habitual substance offender statute because "[elnhancement possibilities under each statute can be based on any kind of felony, or any kind of substance offense." Id. The court in Ross reasoned that the handgun statute can be viewed as the more specific statute while the general habitual offender statute remains a general prohibition on repeat offenses regardless of the activity involved. Id. (citation omitted).

*378As a result, the court in Ross held that when faced with a general statute and a specific statute on the same subject, the more specific one should be applied, and therefore, the trial court should not have used an already enhanced handgun conviction as the basis for further enhancement under the general habitual offender statute. Id. (citation omitted).

Using the analysis employed by Ross, the marijuana possession statute can be viewed as the more detailed and specific statute while the general habitual substance offender statute is a general prohibition on repeat offenses encompassing al-eohol and drugs. Specifically, possession of marijuana as a Class A misdemeanor can only be enhanced to a Class D felony if the person has a prior marijuana possession conviction. On the other hand, a person can be found to be a habitual substance offender if the State proves beyond a reasonable doubt that the person has accumulated two prior unrelated substance offense convictions of any nature. Further, the court in Ross found that the habitual offender statute can be viewed as being as broad as the habitual substance offender statute. Id.

Therefore, based upon our supreme court's holding in Ross, we hold that in light of the statutory construction favoring more specific statutes as opposed to more general ones, a misdemeanor charge under the marijuana possession statute, once elevated to a Class D felony due to a prior marijuana possession conviction, should not be enhanced again under the general habitual substance offender statute.

CONCLUSION

Based on the foregoing, the trial court properly dismissed the State's habitual substance offender count against Downey.

Affirmed.

DARDEN, J., concurs. ROBB, J., dissents with opinion.