FOR PUBLICATION


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

DANIEL J. MOORE                                GREGORY F. ZOELLER
Laszynski & Moore                              Attorney General of Indiana
Lafayette, Indiana
                                               IAN MCLEAN
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                                                         May 07 2014, 9:27 am

                               IN THE
                    COURT OF APPEALS OF INDIANA

JOHN JACOB VENTERS,                            )
                                               )
     Appellant-Defendant,                      )
                                               )
              vs.                              )      No. 79A02-1305-CR-481
                                               )
STATE OF INDIANA,                              )
                                               )
     Appellee-Plaintiff.                       )


                    APPEAL FROM THE TIPPECANOE SUPERIOR COURT
                         The Honorable Michael A. Morrissey, Judge
                              Cause No. 79D06-1201-FD-11


                                      May 7, 2014

                             OPINION – FOR PUBLICATION

PYLE, Judge
                                STATEMENT OF THE CASE

          John Jacob Venters (“Venters”) appeals his sentence for operating a vehicle while

intoxicated (“OVWI”)1, a Class D felony, enhanced by the habitual substance offender

statute.2

          We reverse and remand with instructions for the trial court to order Venters’s

enhanced sentence to run concurrently to his previously enhanced sentences.

                                             ISSUE

          Whether the trial court erred when it ordered Venters’s sentence at issue in
          this case to be served consecutively to his previously entered sentences that
          were enhanced by habitual offender statutes.

                                            FACTS

          On January 11, 2008, Venters received a three year suspended sentence under cause

number 79D01-0706-FB-024 (“FB-024”) for obtaining a controlled substance by fraud or

deceit, a class D felony. On February 19, 2009, Venters received an eleven year enhanced

sentence under cause number 79D01-0809-FC-064 (“FC-064”) for (1) obtaining a legend

drug by forgery or alteration, a class D felony; (2) OVWI, a class D felony; and (3) being

an habitual substance offender. On January 4, 2013, Venters received an enhanced

nineteen year sentence under cause number 79D01-1206-FB-011 (“FB-011”) for reckless

homicide, a class C felony, and for being an habitual offender.

          The instant case arises from a different set of charges filed under cause number

70D01-1201-FD-011 (“FD-011”). On October 2, 2011 in Tippecanoe County, Venters


1
    Ind. Code § 9-30-5-3.
2
    Ind. Code § 35-50-2-10.
                                                2
was the driver of a vehicle that was involved in an accident. Deputy Thomas Lehman

(“Deputy Lehman”) with the Tippecanoe County Sheriff’s Department arrived at the scene

of the crash and observed that Venters had slurred speech with bloodshot and watery eyes.

Venters failed a field sobriety test, and Deputy Lehman advised him of the Indiana Implied

Consent Law. Venters submitted to a blood draw and tested positive for hydrocodone and

klonopin. On or about January 11, 2012, the State charged Venters with three misdemeanor

counts of OVWI. In addition, the State enhanced each of the misdemeanor counts to

felonies by alleging that Venters had been convicted of OVWI within the last five years.

To support the felony charges, the State enhanced the misdemeanors to felonies using

Venters’s conviction under cause number FC-064 in each felony count. Finally, the State

alleged that he was an habitual substance offender. To support its allegation that Venters

had at least two prior unrelated substance offense convictions, the State alleged that

Venters had been convicted of the substance offenses in cause numbers FB-024, FC-064,

and FB-011.

       Venters pled guilty without an agreement on December 21, 2012. The trial court

entered judgment of conviction on one felony OVWI charge and Venters admitted that he

was an habitual substance offender. The trial court held a sentencing hearing on April 3,

2013. After considering the aggravating and mitigating circumstances, the trial court

sentenced Venters to three (3) years on the OVWI charge, enhanced by seven (7) years

because of the habitual substance offender statute. The trial court suspended two (2) years

of the executed sentence to probation. The trial court ordered that the sentence at issue in



                                             3
this case be served consecutively to the sentences imposed under cause numbers FB-024,

FC-064, and FB-011.

       On April 17, 2003, Venters filed a motion to correct error with the trial court. The

trial court held a hearing on April 29, 2013. After hearing arguments, the trial court entered

an order denying Venters’s motion on May 20, 2013. Venters now appeals.

                                         DECISION

       Notwithstanding the authority afforded to appellate courts by Indiana Appellate

Rule 7(B), “sentencing decisions rest within the sound discretion of the trial court and are

reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482,

490 (Ind. 2007), clarified on other grounds on reh’g, 875 N.E.2d 218 (Ind. 2012). An

abuse of discretion occurs if the decision is “clearly against the logic and effect of the facts

and circumstances before the court, or the reasonable, probable, and actual deductions to

be drawn therefrom.” K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006) (quoting In re L.J.M.,

473 N.E.2d 637, 640 (Ind. Ct. App. 1985)). A trial court may abuse its discretion in

sentencing a defendant by imposing a sentence for reasons that are improper as a matter of

law. Anglemyer, 868 N.E.2d at 490. “Where the issue presented is a pure question of law,

we review the matter de novo.” State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997).

       Venters argues that the trial court had no statutory authority to order the present

sentence, enhanced by the habitual substance offender statute, to be served consecutively

to the previously enhanced sentences. We agree.

       In Starks v. State, 523 N.E.2d 735 (Ind. 1988), our Indiana Supreme Court addressed

the propriety of consecutive habitual offender sentences. There, the trial court sentenced

                                               4
Starks to three-year concurrent sentences on eighteen theft convictions. The trial court

enhanced two of the three-year sentences by thirty years and ordered that the enhanced

sentences run consecutively to each other. In reversing the trial court, the Supreme Court

explained as follows:

      [S]entencing courts [are statutorily granted] the power to order consecutive
      sentences in their discretion. The [habitual offender] provision appears
      unlimited in scope, applying to the class of all sentences. Yet the power to
      order consecutive sentences enhanced under the habitual offender statue is a
      special statutory one. It can have the dramatic effect of increasing a single
      sentence from two years to half a lifetime. A basis for such a gross impact
      is the existence of the two prior unrelated felony convictions and sentences,
      and the dangerous nature of the offender which they bespeak. A basis for the
      gross impact which consecutive sentences may have is, by contrast, the moral
      principle that each separate and distinct criminal act deserves a separately
      experienced punishment.         Furthermore the habitual offender status
      determination carries a more binding effect upon the sentence tha[n] does the
      determination of multiple criminal acts. Therefore, the purpose of and
      process of the felony habitual offender statute has special and distinct
      dimensions.

Id. at 736-37. The Court concluded as follows:

      [The relevant] statutes are silent on the question of whether courts have the
      authority to require habitual offender sentences to run consecutively, when
      engaged in the process of meting out several sentences. In the absence of
      express statutory authorization for such a tacking of habitual offender
      sentences, there is none.

Id. at 737 (emphasis added).

      More appropriate to this case, this court has since held that consecutive habitual

offender enhancements are improper even when the sentences arise out of separate and

unrelated trials or sentencing hearings. Ingram v. State, 761 N.E.2d 883, 885-86 (Ind. Ct.

App. 2002); Smith v. State, 774 N.E.2d 1021 (Ind. Ct. App. 2002). In 2009, our Supreme

Court agreed, stating again that “a trial court cannot order consecutive habitual offender

                                            5
sentences.” Breaston v. State, 907 N.E.2d 992, 994 (Ind. 2009). “This holds true whether

the concurrent enhanced sentence is imposed in a single proceeding or in separate

proceedings.” Id. at 995. This rule even applies to those circumstances where a defendant,

“after being arrested for one (1) crime,” commits another crime. Id.; See also Ind. Code §

35-50-1-2(d).

       Despite this holding, the State essentially argues that defendants “whose conduct

has triggered enhancements under different habitual offender regimes [should] be eligible

for consecutive sentencing under [Ind. Code §] 35-50-1-2. (Appellee’s Br. 11). The State

also argues that because the Legislature has amended the habitual offender statute to

exclude certain substance and driving offenses and has created separate habitual offender

statutes for both, the legislature has, in effect, stated its intent that sentences enhanced by

different habitual offender statutes can be served consecutively.

       However, this Court has recently held that sentences enhanced by either the general

habitual offender statute or the habitual substance offender statute cannot run

consecutively. Aslinger v. State, 2 N.E.3d 84 (Ind. Ct. App. 2014). In Aslinger, the trial

court held a joint sentencing hearing for two separate cases. In both cases, the trial court

enhanced each sentence using the habitual substance offender statute. In addition, the trial

court ordered that each sentence be served consecutively to one another because the

defendant had committed an offense while released on bond. In reaching our decision, this

court noted that the purpose of the general habitual offender statute “is to more severely

penalize those persons whom prior sanctions have failed to deter from committing

felonies.” Id. (quoting Baker v. State, 425 N.E.2d 98, 100 (Ind. 1981)).

                                              6
        We find this principle equally applicable to the [habitual substance offender]
        statute. The State requests that this court accord different treatment because
        the [habitual substance offender] statute provides a more modest level of
        enhancement than does the general habitual offender statute. Though it is
        tailored for a specific situation, the [habitual substance offender] statute
        serves the same purpose of enhancing the punishment for an individual
        whose punishments in two prior substance offenses were not sufficient to
        deter his or her commission of the third offense. Furthermore, like the
        general habitual offender statute, the [habitual substance offender] statute is
        silent as to consecutive enhancements, and we decline to diverge from the
        supreme court’s conclusion that, in the absence of explicit permission, the
        trial court has no such authority.3

Aslinger, 2 N.E.2d at 84 (internal citation omitted). Thus, we are not persuaded by the

State’s argument.

        While our Supreme Court in Starks established that the habitual offender statute had

“special and distinct dimensions” from that of I. C. § 35-50-1-2, the prevailing point in

Starks and the line of cases that follow is that absent express statutory authority to do so,

trial courts cannot impose consecutive enhanced sentences, regardless of the circumstances

under which they arise.

        The habitual offender and habitual substance offender statutes have been amended

several times since Starks. With those amendments, the statutes are still silent on a trial

court’s authority to impose consecutive habitual offender sentences. Accordingly, we

reverse and remand to the trial court with instructions to run Venters’s enhanced sentence




3
  Under the general habitual offender statute in effect at the time of Venters’s conviction, a person
determined to be an habitual offender could be sentenced to an additional fixed term of not less than the
advisory sentence and three times the advisory sentence for the underlying offense, but in no case more
than thirty years. Ind. Code § 35-50-2-8(h). Under the habitual substance offender statute in effect at the
time of Venters’s conviction, a person determined to be an habitual substance offender could receive an
additional fixed term of between three and eight years imprisonment. Ind. Code § 35-50-2-10(f).
                                                    7
at issue in this case concurrently with any previous sentence enhanced by the habitual

offender or habitual substance offender statutes.

       Reversed and remanded.

MATHIAS, J., and BRADFORD, J., concur.




                                             8
