Attorneys for Appellant
Steve Carter
Attorney General of Indiana
Stephen R. Creason
Deputy Attorney General
Indianapolis, IN
Attorney for Appellee
Bruce W. Graham
TRUEBLOOD & GRAHAM P.C.
IN THE
INDIANA SUPREME COURT
STATE OF INDIANA,
Appellant (Defendant below),
v.
BRIAN W. DOWNEY,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 79S05-0106-CR-314
)
) Court of Appeals No.
) 79A05-0010-CR-415
)
)
)
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-9912-DF-55
ON PETITION TO TRANSFER
June 28, 2002
SULLIVAN, Justice.
Although the general rule is that a sentence imposed following
conviction under a progressive penalty statute may not be increased further
under either the general habitual offender statute or a specialized
habitual offender statute absent explicit legislative direction, we hold
that the Legislature has directed that such an enhancement be permitted the
circumstances of this case.
Background
Defendant was charged on December 6, 1999, with possession of
marijuana, a Class A misdemeanor,[1] possession of marijuana while having a
prior conviction, a Class D felony,[2] and reckless possession of
paraphernalia,[3] a Class A misdemeanor. He was also charged as being a
habitual substance offender.[4]
Prior to trial, Defendant moved to dismiss the habitual substance
offender charge. After a hearing on the motion, the trial court dismissed
the habitual substance offender information, and the Court of Appeals
affirmed on interlocutory appeal, Downey v. State, 746 N.E.2d 374 (Ind. Ct.
App. 2001).
The Court of Appeals held that “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.” Downey, 746 N.E.2d at
378. The Court of Appeals relied heavily on this Court’s decision in Ross
v. State, 729 N.E.2d 113 (Ind. 2000), where we held that where a
defendant’s misdemeanor violation of Indiana's handgun statute was enhanced
to a Class C felony because of a prior felony conviction, it was improper
for the trial court to impose the enhancement contained in Indiana's
general habitual offender sentencing statute.
We granted transfer. Downey v. State, 753 N.E.2d 17 (Ind. 2001)
(table).
Discussion
The State contends that the trial court erred in granting Defendant’s
motion to dismiss the habitual offender count. Specifically, the State
argues that it was not improper to elevate Defendant’s marijuana possession
charge to a Class D felony and charge him as a habitual substance offender,
predicating the habitual substance offender enhancement on the already
enhanced possession charge.
The proper resolution of this case requires at least a brief review
of the way in which both the appellate courts and the Legislature have
dealt with imposing more severe sentences than would otherwise be the case
on individuals who have proven to be repeat or “habitual” criminals. Both
branches of government have acted with frequency in this area, sometimes in
the sort of “dialogue” of which Chief Justice Abrahamson and Mr. Hughes
have famously written. See Shirley S. Abrahamson and Robert L. Hughes,
Shall We Dance? Steps for Legislators and Judges in Statutory
Interpretation, 75 Minn. L. Rev. 1045,1055 (1991) (discussing how court
decisions can provoke a legislative response followed by additional court
decisions – a sort of “dance” or “dialogue”).
The Legislature has enacted three types of statutes that impose more
severe sentences than would otherwise be the case on individuals who have
proven to be habitual criminals. The interrelationship of these statutes
has required judicial interpretation that has, in turn, prompted the
Legislature to amend the statutes.
General habitual offender statute. The first type of these statutes
is the general habitual offender statute, Ind. Code § 35-50-2-8, under
which a person convicted of three unrelated felonies on three separate
occasions are called “habitual offenders” and can be subjected to an
additional term of years beyond that imposed for the felonies.
Specialized habitual offender statutes. The second type of these
statutes is more specialized. Under this type, a person convicted of a
multiple number of certain closely related offenses can be subjected to an
additional term of years beyond that imposed for the offenses. At issue in
this case, and in several of the previous opinions of this court discussed
infra, is the “habitual substance offender” statute, Ind. Code § 35-50-2-
10. Here the Legislature has provided that a person convicted of three
unrelated “substance offenses” on three separate occasions can be subjected
to an additional term of years beyond that imposed for the offenses. Other
examples of specialized habitual offender statutes are Ind. Code § 9-30-10-
4 ("habitual traffic violator") and Ind. Code § 35-50-2-14 (“repeat sexual
offender”).
Progressive penalty statutes. The third type of these statutes is
even more specialized. Under this type, the seriousness of a particular
charge (with a correspondingly more severe sentence) can be elevated if the
person charged has previously been convicted of a particular offense. At
issue in this case, or in several of the previous opinions of this court
discussed infra, are the following progressive penalty statutes:
— Ind. Code § 35-48-4-11, under which the Class A
misdemeanor possession of marijuana charge can be charged as a Class D
felony if the person charged has a prior conviction of an offense
involving marijuana.
— Ind. Code § 9-30-10-16 & 17 (formerly § 9-12-3-1 & 2),
under which the Class D felony operating a motor vehicle while driving
privileges suspended can be charged as a Class C felony if the person
charged has a prior conviction for operating while suspended.
— Ind. Code § 9-30-5-2 & 3 (formerly § 9-11-2-2 & 3), under
which the Class A misdemeanor operating a motor vehicle while
intoxicated can be charged as a Class D felony if the person charged
has a prior conviction for operating while intoxicated.
— Ind. Code § 35-47-2-23 (c) (2) (B), under which the Class
A misdemeanor carrying a handgun without a license can be charged as a
Class C felony if the person charged has been convicted of a felony
within fifteen years before the date of the offense.
In a series of decisions over the last ten years, our court has held
that, absent explicit legislative direction, a sentence imposed following
conviction under a progressive penalty statute may not be increased further
under either the general habitual offender statute or a specialized
habitual offender statute. (We highlight the “absent explicit legislative
direction” proviso as it is dispositive in the case before us.)
In Stanek v. State, the defendant had been convicted and sentenced
under a progressive penalty statute and then that sentence had been
enhanced under the general habitual offender statute. 603 N.E.2d 152 (Ind.
1992). Specifically, the defendant was charged and convicted of operating
a motor vehicle while his driving privileges were suspended. This charge
had been elevated to a Class C felony (from a Class D felony) because the
defendant had previously been convicted of operating while suspended. The
trial court then used the general habitual offender statute to increase
further the sentence for the Class C felony. We held that further increase
to be impermissible. We found that the Legislature’s intent in creating
the “discrete, separate, and independent” system for enhancing the
sentences of habitual violators of traffic laws was that those sentences
not “be subject to further enhancement under the general habitual offender
statute.” Id. at 153-54.
Freeman v. State and Devore v. State were cases where the defendants
had been convicted and sentenced under a progressive penalty statute and
then their sentences had been further increased under the specialized
habitual offender statute for “habitual substance offenders.” Freeman, 658
N.E.2d 68 (Ind. 1995); Devore, 657 N.E.2d 740 (Ind. 1995). Specifically,
the defendants were charged and convicted of operating motor vehicles while
intoxicated. These charges had been elevated to Class D felonies (from
Class A misdemeanors) because the defendants had previously been convicted
of operating while intoxicated. The trial court then used the specialized
habitual offender statute for “habitual substance offenders” to increase
further the sentence for the Class D felony. As in Stanek, we held that
further increase to be impermissible. We found that in the progressive
penalty statute, because it provided “progressively severe penalties for
defendants who are repeatedly convicted of operating a vehicle while
intoxicated,” Freeman, 658 N.E.2d at 70, the Legislature created a
punishment scheme markedly different from that in the habitual substance
offender statute which “does not contain progressive punishments based on
frequency or severity.” Freeman, 658 N.E.2d at 71. We concluded that the
defendants could be subjected only to the more specific punishment scheme,
citing the rule of statutory construction that directs that a more specific
statute will supersede a more general one. Id. (citing Sanders v. State,
466 N.E.2d 424, 428 (Ind. 1984)).
As this court noted in Haymaker v. State, 667 N.E.2d 1113 (Ind.
1996), after Freeman and Devore, the Legislature modified the habitual
substance offender statute to provide that prior convictions for operating
vehicles while intoxicated, including those where the charge had been
elevated because of a prior conviction, could serve as predicate offenses
for habitual substance offender enhancements. In so responding to Freeman
and Devore, the Legislature made specific reference to Ind. Code § 9-30-10,
the section of the code dealing with operating vehicles while intoxicated.
As such, the amendment did not affect any other progressive penalty
statutes.
Ross v. State was another case like Stanek where the defendant had
been charged and convicted under a progressive penalty statute and then
that sentence had been increased further under the general habitual
offender statute. 729 N.E.2d 113 (Ind. 2000). Specifically, the defendant
was convicted of carrying a handgun without a license. The charge had been
elevated to a Class C felony (from a Class A misdemeanor) because the
defendant had been convicted of a felony involving a handgun within the
preceding 15 years. The trial court then used the general habitual
offender statute to increase further the sentence for the Class C felony.
Following Stanek, Freeman, and Devore, we again found that further increase
to be impermissible. Because the sentencing scheme under which the handgun
charge was elevated was more detailed and specific than the general
habitual offender statute, the more specific sentencing scheme was
applicable. We said:
Beyond the rule of construction that places specific statutes
ahead of general ones, when a conflict arises over the question of
imposing a harsher penalty or a more lenient one, the long-standing
Rule of Lenity should be applied. “It is a familiar principle that
statutes which are criminal or penal in there nature or which are in
derogation of a common-law right must be strictly construed.” State
v. Pence, 173 Ind. 99, 104, 89 N.E. 488, 490 (1909). Also, “where
there is ambiguity it must be resolved against the penalty...” Dowd
v. Sullivan, 217 Ind. 196, 203, 27 N.E.2d 82, 85 (1940).
Ross, 729 N.E.2d at 116.[5]
In the case before us today, Defendant has been charged under a
progressive penalty statute and we are asked whether the sentence for a
conviction on that charge may be further increased under the specialized
habitual offender statute for “habitual substance offenders.” In this
respect, the case is more like Freeman and Devore (which also involved the
habitual substance offender statute) than like Stanek and Ross (which
involved the general habitual offender statute) although, as we have seen,
the general rule is the same. That is, absent explicit legislative
direction, a sentence imposed following conviction under a progressive
penalty statute may not be increased further under either the general
habitual offender statute or a specialized habitual offender statute. The
situation in this case has a charge elevated to a Class D felony (from a
Class A misdemeanor) because Defendant had previously been convicted of
possession of marijuana. Therefore, under the general rule, the trial
court would not be able to use either the general habitual offender statute
or a specialized habitual offender statute absent explicit legislative
direction.
In her dissent in the Court of Appeals, Judge Robb argued that there
is explicit legislative direction here and we agree with her analysis.
Downey, 746 N.E.2d at 378 (Robb, J., dissenting). As noted, the
specialized habitual offender statute invoked here is Ind. Code § 35-50-2-
10, applicable to “habitual substance offenders.” That statute, by its
terms, permits a habitual substance offender enhancement to be imposed on a
person convicted of three unrelated “substance offense[s].” Id. at § 10
(b). “Substance offense” is defined to include “a Class A misdemeanor or a
felony in which the possession... of... drugs is a material element of the
crime.” Id. at § 10 (a) (2). By its specific inclusion of drug possession
misdemeanors and felonies in the category of offenses that are subject to
habitual substance offender enhancement, we find the Legislature intended
to authorize such an enhancement notwithstanding the existence of the drug
possession progressive penalty statute. This contrasts, of course, with
the situations discussed in Stanek and Ross. There is no specific
reference to any progressive penalty statute in the general habitual
offender statute. It also contrasts with the situations discussed in
Freeman and Devore where, at the time those cases were decided, there was
no specific reference to the driving while intoxicated progressive penalty
statute.
Conclusion
Having previously granted transfer thereby vacating the opinion of
the Court of Appeals, we now reverse the decision of the trial court and
remand this case to the trial court for further proceedings consistent with
this opinion.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind. Code § 35-48-4-11 (1998).
[2] Id.
[3] Id. § 35-48-8.3.
[4] Id. § 35-50-2-10.
[5] After Ross, Professor Schumm reported that an effort might be made
in the 2001 legislative session to “insert language into the general
habitual offender statute that [would] make it clear that a defendant whose
conviction has been enhanced once is still eligible for habitual offender
enhancement.” Joel M. Schumm, Recent Developments in Indiana Criminal Law
and Procedure, 34 Ind. L. Rev. 645, 662-63 (2001). As best as we can
determine, the Legislature has moved in the opposite direction, removing
certain offenses and categories of offenses from eligibility for
enhancement under the general habitual offender statute. See Ind. Code §
35-50-2-8, as amended by P.L. 291-2001, § 226.