ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
John D. Clouse Jeffrey A. Modisett
John P. Brinson Attorney General of Indiana
Evansville, Indiana
Geoff Davis
K.C. Norwalk
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
ERIC A. ROSS, )
)
Appellant (Defendant Below), )
) 82S01-0005-CR-334
v. ) in the Supreme Court
)
STATE OF INDIANA, ) 82A01-9802-CR-83
) in the Court of Appeals
Appellee (Plaintiff Below). )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Richard L. Young, Judge
Cause No. 82C01-9704-CF-400
May 25, 2000
SHEPARD, Chief Justice.
Appellant Eric Alan Ross was convicted of a misdemeanor violation of
Indiana’s handgun statute.[1] Because Ross had an earlier felony
conviction, the present conviction was enhanced to a class C felony.[2]
The court also found that Ross was an habitual offender and added a penalty
under the general habitual offender statute.[3]
Ross asserts it was improper to sentence him under two different
sentence enhancement schemes. We agree.
I. Statement of Facts
On April 12, 1997, armed with a .22 caliber pistol, Ross attacked his
ex-girlfriend in an Evansville parking lot. The State charged Ross in
multiple counts. A jury found him guilty on most of them: criminal
confinement as class D felony,[4] battery as a class B misdemeanor,[5]
battery on a law enforcement officer as a class D felony,[6] resisting law
enforcement as a class D felony,[7] and carrying a handgun without a
license as a class A misdemeanor.[8] The jury acquitted him of criminal
confinement as a class B felony.[9]
Prosecutors had alleged that the handgun misdemeanor should be
enhanced to a felony under the handgun statute, Ind. Code § 35-47-2-
23(c)(B), because Ross had been convicted of another felony within the past
fifteen years. Building on this newly enhanced felony, they also charged
him with being an habitual offender, under the general habitual offender
statute, Ind. Code § 35-50-2-8, saying he had been convicted of two
unrelated felonies.
Ross waived his right to a jury trial on these two counts. The trial
judge found that Ross did have a prior felony conviction within the past
fifteen years[10] and thus enhanced the misdemeanor conviction for carrying
a handgun without a license to a class C felony. The trial judge also
found Ross had at least two prior unrelated felony convictions[11] and was
thus an habitual offender.
The trial court imposed concurrent sentences: three years each for
confinement, battery on a law enforcement officer, and resisting law
enforcement; six months for the misdemeanor battery; and eight years for
the handgun felony. The trial court enhanced the handgun felony by an
additional ten years due to the habitual finding.
The Court of Appeals affirmed. Ross v. State, 706 N.E.2d 1126 (Ind.
Ct. App. 1998). We grant transfer.
II. Inappropriate Double Enhancement
Ross asserts that since the handgun conviction had already been
enhanced once by the trial court from a class A misdemeanor to a class C
felony, it was improper for the trial court to impose the enhancement
contained in Indiana’s general habitual offender scheme.
Ross cites three cases for the proposition that a conviction enhanced
under its own specific enhancement scheme may not be further enhanced under
the habitual substance offender statute[12] or the general habitual
offender statute,[13] Freeman v. State, 658 N.E.2d 68 (Ind. 1995), Devore
v. State, 657 N.E.2d 740 (Ind. 1995), and Stanek v. State, 603 N.E.2d 152
(Ind. 1992).
In Freeman, the trial court enhanced Freeman’s drunken driving
conviction to a felony based on a prior drunken driving conviction. Then
the trial court enhanced his sentence by finding him to be an habitual
substance offender. Freeman, 658 N.E.2d at 69. We determined the
enhancement scheme for repeat drunken driving convictions was a scheme for
punishment based on "the specific combination of alcohol and operating a
vehicle required for conviction as well as the particular time frame within
which it must occur." Id. at 71. In contrast, the habitual substance
offender statute is more general because it does not contain progressive
punishment based on frequency or severity. Instead, it broadly defines the
activities that trigger enhancement. Id.
We concluded that Freeman could be subjected only to the more specific
punishment scheme contained in the drunken driving statute, 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)). In Devore, the Court dealt with the same two
statutes and held that in the "absence of clear legislative language to the
contrary, such double enhancement cannot be permitted." Devore, 657 N.E.2d
at 742.
In Stanek, 603 N.E.2d 152, the Court considered the interaction
between the habitual violator of traffic laws statute[14] and the general
habitual offender statute. The habitual traffic offender statute imposes
more severe penalties for repeat offenses. The defendant in Stanek was
convicted of operating a motor vehicle after his driving privileges had
been forfeited for life, a class C felony. The trial judge ordered a four-
year sentence for the class C conviction and added twenty years under the
habitual offender statute. Id. at 153.
We acknowledged in Stanek that the habitual offender statute was
facially applicable but held that the legislature did not intend a
conviction for a class C felony under the statute covering habitual traffic
violators, which we described as a “discreet, separate, and independent
habitual offender statute,” to be subject to further enhancement under the
general habitual offender statute. Id. at 153-54.[15]
Ross’ claim is about the same as those in Freeman, Devore, and Stanek
except that it involves the handgun statute in connection with the general
habitual offender statute.[16]
The issue here is whether a conviction once enhanced by the specific
sentencing scheme of the handgun statute can be enhanced again by the
general habitual offender statute.
In Ross’ situation, the habitual offender statute can be viewed as
being as broad as the habitual substance offender statute in Freeman.
Enhancement possibilities under each statute can be based on any kind of
felony, or any kind of substance offense. In addition, the handgun statute
in the present case also contains a more severe penalty for a repeat
violation and for specific circumstances, much like the drunken driving
statute in Freeman. Using the analysis employed by Freeman, the handgun
statute can be viewed as the more detailed and specific statute while the
general habitual offender statute “remains a general prohibition on repeat
offenses regardless of the activity . . . involved.” Id.
When faced with a general statute and a specific statute on the same
subject, the more specific one should be applied. See id.; Sanders, 466
N.E.2d at 428. The trial court should not use an already enhanced handgun
conviction as the basis for further enhancement under the general habitual
offender statute.
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 longstanding Rule of Lenity
should be applied. “It is a familiar principle that statutes which are
criminal or penal in their 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).
In light of the statutory construction favoring more specific statutes
as opposed to more general ones and because of the Rule of Lenity, a
misdemeanor conviction under the handgun statute, once elevated to a felony
due to a prior felony conviction, should not be enhanced again under the
general habitual offender statute.[17]
Conclusion
While it was error to enhance the handgun conviction a second time,
Ross’ other contentions of error are unavailing. We summarily affirm the
Court of Appeals dispositions on those contentions. Ind. Appellate Rule
11(B)(3). Accordingly, the convictions and Ross’ status as an habitual
offender are affirmed. We remand for re-sentencing on the habitual offender
finding.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1]Ind. Code Ann. § 35-47-2-23(c) (West Supp. 1996).
[2]Ind. Code Ann. § 35-47-2-23(c)(2)(B) (West Supp. 1996).
[3]Ind. Code Ann. § 35-50-2-8 (West Supp. 1996).
[4]Ind. Code Ann. § 35-42-3-3 (West Supp. 1998).
[5]Ind. Code Ann. § 35-42-2-1 (West Supp. 1996).
[6]Ind. Code Ann. § 35-42-2-1(a)(2)(A) (West Supp. 1996).
[7]Ind. Code Ann. § 35-44-3-3(b)(1) (West Supp. 1996).
[8]Ind. Code Ann. § 35-47-2-23 (West Supp. 1996).
[9]Ind. Code Ann. § 35-42-3-3 (West Supp. 1996).
[10]Ross was convicted on April 27, 1993 of battery as a felony.
[11]Ross had been convicted on March 26, 1993 of the felonies of criminal
recklessness, resisting law enforcement, and battery. He was convicted on
October 25, 1991 of battery as a felony.
[12]Ind. Code Ann. § 35-50-2-10 (West Supp. 1996).
[13]Ind. Code Ann. § 35-50-2-8 (West Supp. 1996).
[14]Now codified at Ind. Code Ann. § 9-30-10 (West Supp. 1999).
[15]In Haymaker v. State, 667 N.E.2d 1113 (Ind. 1996), Justice Selby noted
that after Freeman and Devore, the legislature modified the habitual
substance offender statute at issue in those cases. As a result, after
July 1, 1996, prior convictions for drunken driving may serve as predicate
offenses for habitual substance offender enhancements. Id. at 1115. No
similar legislation was enacted with respect to the handgun violations
involved in this case.
[16]While the State relies on Woods v. State, 471 N.E.2d 691, 692-93 (Ind.
1984), it is apparent that we held there only that double jeopardy did not
prohibit the repetitive use of prior convictions for enhancements such as
the one in this case.
[17] The contrary holding in Thomas v. State, 684 N.E.2d 222 (Ind. Ct. App.
1997), is disapproved.