FILED
Mar 28 2023, 8:31 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer Theodore E. Rokita
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael T. Owens, March 28, 2023
Appellant-Defendant, Court of Appeals Case No.
21A-CR-1900
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela Dow
Appellee-Plaintiff. Davis, Judge
Trial Court Cause No.
49D27-1902-F3-4274
Opinion by Judge Weissmann
Judges May and Crone concur.
Court of Appeals of Indiana | Opinion 21A-CR-1900 | March 28, 2023 Page 1 of 8
Weissmann, Judge.
[1] Twenty-one days before Michael Owens’s scheduled jury trial, the State
amended its charging information to allege that Owens was a habitual offender.
Owens did not then object to the amendment, but needing additional time to
secure certain witnesses, he requested a continuance of his trial date. Eighteen
months later, Owens was tried and convicted of all charges and sentenced to a
total of 40 years in prison, including a 10-year habitual offender enhancement.
Owens appeals only the enhancement, claiming the State’s habitual offender
amendment was untimely. Because his claim rests on a faulty reading of
Indiana Code § 35-34-1-5(e), we affirm. However, we sua sponte remand to
correct a sentencing error.
Facts
[2] In February 2019, Owens twice punched his girlfriend, Candiance Day, in the
face. He then pulled a gun on Day and shot her in the face, back, and leg. The
gun was loaded with “birdshot,” and Day survived the attack. Tr. Vol. II, pp.
196-97. However, the shooting left her blind in one eye.
[3] In connection with the incident, the State charged Owens with attempted
murder, aggravated battery, and unlawful possession of a firearm by a serious
violent felon (SVF). The trial court initially set the case for a jury trial to begin
on April 29, 2019. But due to court congestion and continuances, the trial date
was reset numerous times.
Court of Appeals of Indiana | Opinion 21A-CR-1900 | March 28, 2023 Page 2 of 8
[4] On February 3, 2020—21 days before Owens’s fifth trial setting and a year after
charges were initially filed—the State amended its charging information to
allege that Owens was a habitual offender. Two weeks later, the fifth trial
setting was continued because Owens needed additional time to secure certain
witnesses. After several more trial settings, Owens’s jury trial finally began on
August 10, 2021.
[5] At the outset of trial, Owens moved to dismiss the habitual offender
enhancement as untimely. The trial court took the motion under advisement
but eventually denied it, noting that the State had filed its habitual offender
amendment 18 months earlier. Ultimately, Owens was convicted of all three
charges and found to be a habitual offender.
[6] At sentencing, the trial court “merged” Owens’s convictions for aggravated
battery and attempted murder due to double jeopardy concerns. Tr. Vol. III, p.
159; App. Vol. II, p. 9. The court then sentenced Owens to 30 years in prison
for attempted murder, plus a 10-year habitual offender enhancement. The court
also sentenced Owens to a concurrent prison term for unlawful possession of a
firearm by a SVF. Thus, Owens received an aggregate sentence of 40 years.
Discussion and Decision
[7] Owens only appeals the trial court’s denial of his motion to dismiss the habitual
offender enhancement. But we also address sua sponte the trial court’s attempt
to resolve its double jeopardy concerns by merging, without vacating, Owens’s
conviction for aggravated battery.
Court of Appeals of Indiana | Opinion 21A-CR-1900 | March 28, 2023 Page 3 of 8
I. Habitual Offender
[8] Owens argues that the trial court erred in denying his motion to dismiss the
habitual offender enhancement because the State failed to show good cause for
its allegedly belated filing of the habitual offender amendment. The State claims
it timely filed the amendment and, therefore, was not required to show good
cause. Resolution of this issue hinges on our interpretation of Indiana Code §
35-34-1-5(e), which states:
An amendment of an indictment or information to include a
habitual offender charge under IC 35-50-2-8 must be made at
least thirty (30) days before the commencement of trial. However,
upon a showing of good cause, the court may permit the filing of
a habitual offender charge at any time before the commencement
of the trial if the amendment does not prejudice the substantial
rights of the defendant.
(emphasis added).
[9] Owens contends that the phrase “before the commencement of trial” means
before the trial date on the books when the habitual offender amendment is
filed. The State counters that the phrase means before the beginning of trial,
whenever that may occur. We agree with the State.1
1
In arguing that the deadline is measured from the trial date in place when the State files its habitual offender
amendment, Owens cites to this Court’s decision in Campbell v. State, 161 N.E.3d 371 (Ind. Ct. App. 2020).
But Campbell only concerned whether good cause existed for the State’s belated habitual offender
amendment. Id. at 376-77. The untimeliness of that amendment was not contested, and this Court did not
interpret Indiana Code § 35-34-1-5(e) and its phrase “before the commencement of trial.”
Court of Appeals of Indiana | Opinion 21A-CR-1900 | March 28, 2023 Page 4 of 8
[10] “When interpreting a statute, our primary goal is to fulfill the legislature’s
intent.” Mi.D. v. State, 57 N.E.3d 809, 812 (Ind. 2016). “And the ‘best evidence’
of that intent is the statute’s language.” Id. (quoting Adams v. State, 960 N.E.2d
793, 798 (Ind. 2012)). “If that language is clear and unambiguous, we simply
apply its plain and ordinary meaning, heeding both what it ‘does say’ and what
it ‘does not say.’” Id. (quoting State v. Dugan, 793 N.E.2d 1034, 1036 (Ind.
2003). Moreover, “[w]hen interpreting a statute, we seek to give effect to its
enacted terms.” State v. Neukam, 189 N.E.3d 152, 154 (Ind. 2022).
[11] The word “commencement” plainly and ordinarily means “the beginning of
something.” Commencement, Cambridge Online Dictionary, https://dictionary.
cambridge.org/us/dictionary/english/commencement (last visited Mar. 9,
2023).2 Read together, the two sentences of Indiana Code § 35-34-1-5(e) clearly
and unambiguously require a showing of good cause only when a habitual
offender amendment is filed less than 30 days before the beginning of trial.
They do not measure the deadline simply from a trial date.
[12] In fact, the phrases “commencement of trial” and “trial date” are both used to
establish deadlines throughout the Indiana Criminal Code. See, e.g., Ind. Code §
35-34-1-10 (using “commencement of trial” as deadline for joinder motion);
Ind. Code § 35-34-1-12 (using same as deadline for severance or separate trial
motion); Ind. Code § 35-36-8-3 (using same as deadline for pretrial conference);
2
See also Commence, Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/
commence (last visited Mar. 9, 2023) (defining “commence” to mean “start” or “begin”).
Court of Appeals of Indiana | Opinion 21A-CR-1900 | March 28, 2023 Page 5 of 8
Ind. Code § 35-36-8-1(c)(3) (using “trial date” as omnibus date); Ind. Code § 35-
36-11-2 (using same to measure deadline for prosecution to file notice of intent
to introduce the laboratory report); Ind. Code § 35-36-9-5 (using “initial trial
date” to measure deadline for trial court to rule on defense petition alleging
intellectual disability).
[13] The repeated use of both terms throughout the Criminal Code demonstrates our
legislature’s intent that a habitual offender amendment be filed no less than 30
days before the beginning of trial as opposed to a particular trial setting. See Ind.
Code § 35-34-1-5(e). If the legislature intended the deadline to be measured
from the “trial date” in place when the State files its amendment, it would have
chosen that language. We therefore conclude that the 30-day deadline of
Indiana Code § 35-34-1-5(e) is measured from the date on which trial actually
begins.
[14] Our Supreme Court seemingly has reached a similar conclusion in the context
of a joinder motion under Indiana Code § 35-34-1-10(b). Dorsey v. State, 490
N.E.2d 260, 265 (Ind. 1986), overruled on other grounds by Wright v. State, 658
N.E.2d 563 (Ind. 1995). That statute generally allows a trial court to join for
trial separate informations charging a defendant with two or more related
offenses. Ind. Code § 35-34-1-10(b). However, a motion for such joinder must
be made “before commencement of trial on either of the offenses charged.” Id.
(emphasis added).
Court of Appeals of Indiana | Opinion 21A-CR-1900 | March 28, 2023 Page 6 of 8
[15] In Dorsey, the State moved for a continuance on the morning of a burglary trial,
before prospective jurors were brought in for voir dire, because the defendant’s
alibi witnesses were unavailable to testify. The State also filed a motion under
Indiana Code § 35-34-1-10(b), seeking to join for trial a related theft charge
against the defendant. The trial court granted both motions, and on appeal, the
defendant argued that the joinder was erroneous “due to the possible confusion
and prejudice to a defendant facing multiple charges.” Dorsey, 490 N.E.2d at
265. Our Supreme Court affirmed the trial court’s judgment, concluding the
alleged prejudice was only “that which is inevitable in every joinder case.” Id.
In reaching this conclusion, the Court noted that joinder motions must be filed
“before commencement of trial.” Id. The Court also observed: “the submission
of the [burglary] case to trial was withdrawn and thus, for the purposes of
[joinder], the trial had not yet commenced.” Id.
[16] In Owens’s case, the State filed its habitual offender amendment on February 3,
2020. Though his trial was then-scheduled to begin 21 days later, it did not
actually begin for another 18 months. Accordingly, the amendment was filed
within 30 days of the commencement of Owens’s trial. Because the amendment
was timely, the State was not required to show good cause under Indiana Code
§ 35-34-1-5(e), and the trial court did not err in denying Owens’s motion to
dismiss the habitual offender enhancement.
Court of Appeals of Indiana | Opinion 21A-CR-1900 | March 28, 2023 Page 7 of 8
II. Merger
[17] We sua sponte address the trial court’s “merger” of Owens’s convictions for
aggravated battery and attempted murder. Both the abstract of judgment and
sentencing order list “Conviction Merged” as the disposition of the aggravated
battery charge. App. Vol. II, pp. 23, 25. Because it appears the trial court
entered judgment of conviction on the aggravated battery charge, merging the
offenses was not enough to resolve the court’s double jeopardy concern. See
Spry v. State, 720 N.E.2d 1167, 1170 (Ind. Ct. App. 1999) (“Merging, without
also vacating [lesser included] convictions, is not sufficient.”). As the parties do
not contest the trial court’s double jeopardy determination, we remand this case
to the trial court to vacate the “merged” conviction for aggravated battery in
both its sentencing order and abstract of judgment.
[18] Affirmed and remanded.
May, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 21A-CR-1900 | March 28, 2023 Page 8 of 8