                                                                                 FILED
                                                                             Apr 25 2019, 8:45 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
James D. Crum                                               Curtis T. Hill, Jr.
Coots, Henke & Wheeler, P.C.                                Attorney General of Indiana
Carmel, Indiana                                             Caroline G. Templeton
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Clark Allen Hill,                                           April 25, 2019
Appellant-Petitioner,                                       Court of Appeals Case No.
                                                            18A-CR-2658
        v.                                                  Appeal from the
                                                            Hamilton Superior Court
State of Indiana,                                           The Honorable
Appellee-Respondent.                                        Gail Z. Bardach, Judge
                                                            Trial Court Cause No.
                                                            29D06-1802-CM-1086



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019                                   Page 1 of 8
[1]   Clark Allen Hill (“Hill”) was convicted of Operating a Vehicle with an alcohol

      concentration equivalent (“ACE”) of .15 or more,1 a Class A misdemeanor, and

      was adjudicated as an Habitual Vehicle Substance Offender2 (“HVSO”). Hill

      raises one issue, which we restate as whether the enhancement of his conviction

      for operating while intoxicated (“OWI”) by his adjudication as a HVSO

      violates the federal constitution’s prohibition against double jeopardy.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On February 11, 2018, Hill was stopped for speeding by a Westfield, Indiana

      police officer. Tr. Vol. II at 13. Hill showed signs of intoxication, so the officer

      conducted field sobriety tests, which Hill failed. Id. Hill submitted to a

      portable breath test, which indicated that he had consumed alcohol. Id. at 13-

      14. A certified chemical test later showed that Hill had an ACE of .153 grams

      of alcohol per 210 liters of his breath. Id. at 14. Hill was charged with

      Operating a Vehicle with an ACE of .15 or more, a Class A misdemeanor, and

      OWI as a Class C misdemeanor.3 Appellant’s App. Vol. 2 at 11.


[4]   Years before, Hill had been convicted of similar charges in 1995, 2001, and

      2010. Tr. Vol. II at 14-15. Accordingly, the State charged Hill as an HVSO,




      1
          See Ind. Code § 9-30-5-2(b).
      2
          See Ind. Code § 9-30-15.5-2.
      3
          See Ind. Code § 9-30-5-2(a).


      Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019           Page 2 of 8
      citing the following prior convictions: 1) a 1995 Marion County conviction for

      Operating a Vehicle with a BAC of .10 or more, a Class C misdemeanor (“the

      1995 Marion County conviction”); 2) a 2010 Boone County conviction for

      OWI, Endangering a Person, a Class A misdemeanor (“the 2010 Boone County

      conviction”); and 3) a 2001 Boone County conviction for OWI, a Class A

      misdemeanor (“the 2001 Boone County conviction”). Appellant’s App. Vol. 2 at

      8.


[5]   At a July 13, 2018 hearing, Hill pleaded guilty to the Class A misdemeanor

      charge and admitted to the HVSO charge. Tr. Vol. II at 15-17. In support of the

      HVSO charge, the State relied on the 1995 Marion County conviction and the

      2010 Boone County conviction; it did not rely on the 2001 Boone County

      conviction because that conviction did not appear on Hill’s driving record. Id.

      at 14-15. The trial court sentenced Hill according to the terms of the plea

      agreement: one year for the Class A misdemeanor OWI conviction, enhanced

      by one year for the HVSO adjudication. Id. at 18; Appellant’s App. Vol. 2 at 43-

      48.


[6]   On September 7, 2018, Hill filed a motion to correct erroneous sentence,

      alleging that the convictions used to support the HVSO enhancement were

      previously used to support an earlier habitual substance offender enhancement,

      and were therefore ineligible to support the current enhancement. Appellant’s

      App. Vol. 2 at 53-70. Specifically, Hill alleged that the 1995 Marion County

      conviction used in this case to support his HVSO status was used to support his

      habitual substance offender adjudication for the 2010 Boone County

      Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019       Page 3 of 8
      conviction. Id. at 55, 59-60. On October 4, 2018, the trial court denied Hill’s

      motion to correct erroneous sentence. Id. at 7, 84. Hill now appeals.


                                        Discussion and Decision4
[7]   Hill contends the trial court abused its discretion in denying his motion to

      correct erroneous sentence, arguing that the use of the 1995 Marion County

      conviction to support his HVSO adjudication and sentence enhancement

      violated the double jeopardy prohibition because that conviction was earlier

      used to support his habitual substance offender adjudication for the 2010 Boone

      County conviction.5


[8]   In reviewing a trial court’s decision on a motion to correct erroneous sentence,

      we defer to the trial court’s factual findings and review the decision for an abuse

      of discretion. Koontz v. State, 975 N.E.2d 846, 848 (Ind. Ct. App. 2012). An

      abuse of discretion occurs when the trial court’s decision is against the logic and

      effect of the facts and circumstances before it. Id. As to post-conviction



      4
        The State argues that because Hill raises a constitutional challenge to his HVSO enhancement, his appeal
      requires us to review matters beyond the face of the judgment. Thus, the State contends that Hill should have
      raised this issue in the trial court via a petition for post-conviction relief instead of a motion to correct
      erroneous sentence. See Robinson v. State, 805 N.E.2d 783, 785-86 (Ind. 2004). The State asks us to remand
      this case and direct the trial court to treat Hill’s constitutional challenge as a petition for post-conviction
      relief, hold hearings to develop the record, and issue findings of fact and conclusions of law. While the
      State’s argument is well-taken, we decline the State’s request because, as the State acknowledges, we have
      previously reviewed a motion to correct erroneous sentence as a petition for post-conviction relief. See Chism
      v. State, 807 N.E.2d 798, 801 (Ind. Ct. App. 2004). Further, because we need only review the relevant parts
      of Hill’s criminal record, which are not in dispute and are in the record before us, remand for fact-finding is
      not necessary. Thus, we review Hill’s claim on the merits.
      5
       Hill also claims the trial court erred in using the 2001 Boone conviction to support his HVSO adjudication,
      but the trial court, in fact, did not use that conviction because it did not appear on Hill’s driving record. Tr.
      Vol. II at 14-15

      Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019                                    Page 4 of 8
      matters, an appeal from the denial of post-conviction relief is an appeal from a

      negative judgment. Chism v. State, 807 N.E.2d 798, 801 (Ind. Ct. App. 2004).

      Thus, an appellant must show that the evidence as a whole leads unerringly and

      unmistakably to a conclusion opposite to that reached by the lower court. Id.

      However, in the post-conviction setting conclusions of law receive no deference

      on appeal. Id.


[9]   Hill argues that using the same conviction to support two separate habitual

      adjudications is “using the same set of facts to twice punish a defendant.”

      Appellant’s Br. at 5. Hill acknowledges that the Indiana Supreme Court has

      squarely and explicitly rejected this argument in Mayo v. State, 681 N.E.2d 689

      (1987), which held that there was no double jeopardy violation where a theft

      conviction was used to support both Mayo’s earlier habitual offender status in

      Alabama and his habitual offender status in Indiana. Id. at 693-94.

      Nonetheless, Hill asks us to “reconsider” Mayo and “set aside the enhancement

      count.” Appellant’s Br. at 6. This is justified, Hill argues, because his one-year

      HVSO enhancement resulted in an aggregate sentence of two years, double the

      maximum one-year sentence for his underlying conviction for Class A

      misdemeanor OWI. Thus, Hill argues that his two-year aggregate sentence

      cannot be considered a mere “aggravated or stiffened sentence[ ].” Id. at 5-6.

      Hill’s reference to an “aggravated or stiffened sentence” comes from Witte v.

      United States, 515 U.S. 389 (1995), where the United States Supreme Court

      rejected a double jeopardy challenge to a recidivist statute, stating:




      Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019         Page 5 of 8
               [W]e have rejected double jeopardy challenges because the
               enhanced punishment imposed for the later offense “is not to be
               viewed as either a new jeopardy or additional penalty for the
               earlier crimes,” but instead as “a stiffened penalty for the latest
               crime, which is considered to be an aggravated offense because a
               repetitive one.”


       Id. at 400 (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). Hill does not

       explain how a one-year enhancement that results in a two-year aggregate

       sentence is more than a mere “aggravated or stiffened sentence.” See Witte, 515

       U.S. at 400.


[10]   In addressing Hill’s double jeopardy claim, we preliminarily observe that

       because there is a paucity of case law addressing the HVSO statute, our analysis

       will draw on cases that interpret the habitual offender statute. See Ind. Code §

       35-50-2-8. Reviewing those cases compels us to deny Hill’s request that we

       vacate the HVSO enhancement.


[11]   More specifically, we decline to grant relief to Hill for three reasons. First, we

       deny his request that we “reconsider” the holding in Mayo v. State, a decision by

       the Indiana Supreme Court. See Appellant’s Br. at 6. As Indiana’s intermediate

       appellate court, we are bound by Indiana Supreme Court precedent and are not

       at liberty to “reconsider” that precedent. Minor v. State, 36 N.E.3d 1065, 1074

       (Ind. Ct. App. 2015).


[12]   Second, Mayo and other decisions by our Supreme Court easily dispose of Hill’s

       argument. As Mayo observed, “the United States Supreme Court has

       consistently upheld recidivist or habitual offender statutes against double
       Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019            Page 6 of 8
       jeopardy claims.” 681 N.E.2d at 694 (citing Witte, 515 U.S. at 400). Likewise,

       in Baker v. State, 425 N.E.2d 98 (Ind. 1981), our Supreme Court rejected a

       similar double jeopardy claim:


               Because the habitual offender statute does not create new or
               separate offenses and the habitual offender proceeding does not
               deal with the underlying facts on the substantive charge, the use
               of prior convictions at more than one habitual offender
               proceeding does not constitute double jeopardy. . . . There are no
               constitutional or collateral estoppel barriers to prevent the state
               from exacting that punishment each time a different felony is
               committed as long as the prior convictions do still exist.


       Id. at 101; see also Williams v. State, 430 N.E.2d 759, 768 (Ind. 1982) and Dixon v.

       State, 437 N.E.2d 1318, 1321 (Ind. 1982).


[13]   Third, we reject Hill’s argument that an HVSO enhancement should not result

       in an aggregate sentence that exceeds the maximum sentence for the underlying

       OWI conviction. Hill cites no authority for this novel interpretation, and we

       have found none. Moreover, Hill’s interpretation would lead to absurd results.

       See B.S. v. State, 95 N.E.3d 177, 179 (Ind. Ct. App. 2018). Hill was convicted of

       a Class A misdemeanor. A trial court may sentence a person convicted of a

       Class A misdemeanor to no more than one year. Ind. Code § 35-50-3-2. Once

       a person is adjudicated as an HVSO, the trial court “shall sentence a person

       found to be a [HVSO] to an additional fixed term of at least one (1) year . . . to be

       added to the term of imprisonment imposed under IC 35-50-2 or IC 35-50-3.”

       Ind. Code § 9-30-15.5-2(d) (emphasis added). Thus, under Hill’s reasoning, the

       only way the trial court could have applied an HVSO enhancement to Hill’s

       Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019            Page 7 of 8
       underlying conviction was to impose no sentence whatsoever on the underlying

       OWI conviction. Such an interpretation would eviscerate a trial court’s well-

       established discretion in sentencing matters. We do not believe the legislature

       could have foreseen or countenanced such an unusual result. See B.S., 95

       N.E.3d at 179.


[14]   In using the 1995 Marion County conviction to support Hill’s HVSO status,

       where that same conviction was also used as a predicate conviction to support

       Hill’s habitual offender status in an earlier case, the trial court did not subject

       Hill to double jeopardy, and the trial court did not abuse its discretion in

       denying Hill’s motion to correct erroneous sentence. See Koontz, 975 N.E.2d at

       848. Also, we find that Hill has not shown that the evidence and controlling

       precedent lead unerringly and unmistakenly to a different result than the one

       reached by the trial court. See Chism, 807 N.E.2d at 801.


[15]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2658 | April 25, 2019           Page 8 of 8
