Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                  Oct 09 2012, 9:00 am
court except for the purpose of
establishing the defense of res judicata,                         CLERK
                                                                of the supreme court,
                                                                court of appeals and
collateral estoppel, or the law of the case.                           tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

HOLLY L. LYONS                                   GREGORY F. ZOELLER
Greenfield, Indiana                              Attorney General of Indiana

                                                 RICHARD C. WEBSTER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

THEOTHUS CARTER,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 30A05-1203-CR-137
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE HANCOCK CIRCUIT COURT
                         The Honorable Richard C. Culver, Judge
                             Cause No. 30C01-1006-FA-133



                                      October 9, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          Appellant-defendant Theothus Carter appeals the sixty-five-year aggregate

sentence that was imposed after the trial court re-sentenced him for Attempted Murder,1 a

class A felony, Attempted Robbery,2 a class A felony, Burglary,3 a class B felony, and

with being a Habitual Offender.4             In Carter’s initial direct appeal to this court, we

determined that double jeopardy principles were violated with regard to a conviction for

class A felony burglary. Thus, we remanded the cause to the trial court with instructions

that it re-sentence him on that offense as a class B felony.

          Carter now argues that the trial court abused its discretion in “repositioning” and

attaching the habitual offender count on remand to the attempted robbery conviction and

ultimately imposing the same sixty-five-year aggregate sentence that was originally

imposed. Appellant’s Br. p. 3.5 Concluding that the trial court properly exercised its

discretion in attaching the habitual offender count to a different felony count on remand,

we affirm.

                                                    FACTS

          The facts as found in Carter’s original appeal are as follows:

1
    Ind. Code § 35-42-1-1; Ind. Code § 35-41-5-1.
2
    I.C. § 35-42-5-1; I.C. 35-41-5-1.
3
    Ind. Code § 35-43-2-1.
4
    Ind. Code § 35-50-2-8.
5
  We also note that Carter complains that the trial court erred in allowing the State to file the habitual
offender Count in the first instance. Appellant’s Br. p. 4-5. However, Carter raised this issue on direct
appeal and it was decided adversely to him. Carter, 956 N.E.2d at 172-73. Thus, this claim is barred on
the basis of res judicata and is the law of the case. Reed v. State, 856 N.E.2d 1189, 1194 (Ind. Ct. App.
2006).
                                                      2
      In May of 2010, Carter and three other people broke into a home in
      Hancock County in order to take money they believed was there. Carter
      threatened to kill one resident and he shot the other. The State charged
      Carter with attempted murder and attempted robbery as Class A felonies
      and with burglary as a Class B felony. It subsequently amended the
      burglary charge to a Class A felony and charged Carter with being an
      habitual offender. A jury found him guilty of all three counts and the court
      found he was an habitual offender.

Carter v. State, 956 N.E.2d 167, 169 (Ind. Ct. App. 2011), trans. denied. The State had

attached the habitual offender count to the class A felony burglary charge for

enhancement purposes, and the trial court ultimately sentenced Carter to an aggregate

term of sixty-five years of incarceration.      More particularly, the sentencing order

provided that

      On Count I, Attempted Murder, 40 years to the Indiana Department of
      Corrections; count II, Attempted robbery, 40 years to the Indiana
      Department of Corrections and Count III, Burglary, 40 years to the Indiana
      Department of Corrections. The sentence for Burglary, a class A felony is
      enhanced by an additional 25 years for a total sentence on Count III of 65
      years. The sentences for counts I, II and III are ordered to run concurrent
      for a total sentence to the Indiana Department of Corrections of 65 years.

Appellant’s App. p. 29.

      Carter appealed, alleging, among other things, that the convictions for both class A

felony attempted robbery and class A felony burglary violated double jeopardy

principles. Id. We agreed with Carter’s double jeopardy argument, vacated the class A

burglary conviction, and directed the trial court on remand to reduce the burglary charge

to a class B felony and re-sentence Carter accordingly.




                                            3
       At the sentencing hearing on remand, the trial court repositioned the habitual

offender count to enhance the class A felony attempted robbery conviction that was

alleged in Count II. Thus, the end result was the same, in that Carter was sentenced to an

aggregate term of sixty-five years of incarceration. The sentence called for Carter to

serve forty years on each of the attempted murder and attempted robbery convictions, and

twenty years on the class B burglary conviction, all to run concurrently. The trial court

left the habitual offender enhancement, now attached to the attempted robbery

conviction, at twenty-five years.

       Carter now appeals.

                             DISCUSSION AND DECISION

       In addressing Carter’s contention that the trial court abused its discretion in

attaching the habitual offender count to a different felony on remand, we note that the

habitual offender finding does not constitute a separate crime nor does it result in a

separate sentence. Greer v. Sate, 680 N.E.2d 526, 527 (Ind. 1997). Rather it results in a

sentence enhancement imposed on the conviction of a subsequent felony. Id.

       When a defendant simultaneously receives multiple felony convictions and a

habitual offender finding, a trial court must impose the resulting penalty enhancement

upon only one of the convictions and must specify the conviction to be so enhanced. Id.

A habitual offender finding is merely a jury’s determination, however, that a defendant

has accumulated two unrelated felony convictions prior to the current convictions. Id.

Therefore, even in the case of a habitual offender proceeding following multiple

                                            4
convictions, the jury’s finding of the habitual offender status is not linked to any

particular conviction. Id. Indeed, we have specifically determined that “the particular

felony conviction to which the habitual offender enhancement is attached is not relevant.”

Wilson v. State, 688 N.E.2d 1293, 1295 (Ind. Ct. App. 1997).

       In light of the above, we find that when the trial court was ordered to re-sentence

Carter to class B felony burglary on remand because his conviction for class A felony

burglary violated double jeopardy principles, it was appropriate for the trial court to

reassess the attachment of the habitual offender enhancement. In other words, we cannot

say that Carter’s habitual offender status was irrevocably coupled with the burglary

conviction. Stated differently, the mere fact that the burglary conviction was re-entered

as a class B felony should not preclude the trial court from doing what it could do given

any other change to the status of the underlying conviction. Because the underlying

conviction had been modified on Carter’s direct appeal, the trial court then re-evaluated

both the appropriate sentence for the underlying convictions and the appropriateness of

attaching the habitual offender enhancement to that sentence.

       In fact, Carter conceded that the trial court had the discretion to reposition the

habitual offender determination to another felony conviction. Tr. p. 7. And the trial

court exercised proper discretion in doing so. Tipton v. State, 765 N.E.2d 187, 189-90

(Ind. Ct. App. 2002).      As a result, the trial court’s repositioning of the habitual

enhancement to Carter’s class A felony attempted robbery conviction was not an abuse of

discretion, and we decline to set the sentence aside.

                                             5
      The judgment of the trial court is affirmed.

ROBB, C.J., and BRADFORD, J., concur.




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