MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Aug 26 2019, 5:55 am
court except for the purpose of establishing                           CLERK
the defense of res judicata, collateral                            Indiana Supreme Court
                                                                      Court of Appeals
estoppel, or the law of the case.                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Timothy W. Allen,                                        August 26, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2952
        v.                                               Appeal from the
                                                         Franklin Circuit Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      J. Steven Cox, Judge
                                                         Trial Court Cause No.
                                                         24C01-1704-F3-299



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2952 | August 26, 2019            Page 1 of 7
[1]   Timothy W. Allen (“Allen”) pleaded guilty to dealing in methamphetamine1

      and possession of methamphetamine2 both as Level 5 felonies and admitted to

      being an habitual offender.3 He appeals his habitual offender enhancement,

      arguing that the enhancement was improper because the habitual offender

      allegation had been dismissed.


[2]   We dismiss.


                                         Facts and Procedural History
[3]   In March 2017, police received information that Allen was manufacturing

      methamphetamine. Allen had a prior conviction for manufacturing

      methamphetamine. On several occasions, police observed him coming from

      the area where the manufacturing was alleged to be occurring. Tr. Vol. 2 at 18-

      19, 45-47. Police conducted a search of NPLEx, which is a system that logs

      purchases of pseudoephedrine, and discovered that Allen had made numerous

      purchases. Id. at 20-22, 47-48. Police obtained Allen’s discarded trash and

      discovered several items connected with methamphetamine manufacture and

      consumption. Id. at 22-24, 49, 53. Police obtained and executed a search

      warrant for Allen’s residence. Id. at 25, 53-54. Based on the results of this

      investigation, the State charged Allen, on April 4, 2017, with Count 1, Level 3




      1
          See Ind. Code § 35-48-4-1.1.
      2
          See Ind. Code § 35-48-4-6.1.
      3
          See Ind. Code § 35-50-2-8.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2952 | August 26, 2019   Page 2 of 7
      felony dealing in methamphetamine, Count 2, Level 5 felony possession of

      methamphetamine, Count 3, Level 6 felony possession of precursors, and

      Count 4, Level 6 felony maintaining a common nuisance. Appellant’s App. Vol.

      II at 28-31.


[4]   On February 12, 2018, the State filed its notice of intent to file a habitual

      offender enhancement if plea negotiations were unsuccessful. Id. at 57. In

      August 2018, the State amended the charging information to add Counts 5-7,

      all of which constituted habitual offender enhancement allegations. Id. at 86-

      89. All three counts alleged the identical prior unrelated felony convictions: (1)

      a Class B felony manufacturing methamphetamine conviction from 2011; (2) a

      Class C felony battery conviction from 2004; (3) a Class D felony criminal

      recklessness conviction from 1994; and (4) convictions for Class C felony

      battery, Class D felony leaving the scene of an accident, and Class D felony

      possession of marijuana from 1994. Id. at 87-89.


[5]   On October 3, 2018, the State filed a motion to amend the charging information

      and to dismiss Counts 3, 4, 6, and 7, which the trial court granted. Id. at 105-

      06, 109. As amended, Count 1 was lowered to a Level 4 felony, and the

      remaining habitual offender allegation, previously Count 5, became the

      Amended Count 3. Id. at 107-08. The amended habitual offender charge

      removed Allen’s 1994 conviction for criminal recklessness from the list of prior

      unrelated felonies. Id. at 108.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2952 | August 26, 2019   Page 3 of 7
[6]   A guilty plea hearing was held on October 9, 2018. At the hearing, the State

      amended the information orally, and Allen pleaded guilty without a written

      plea agreement. Tr. Vol. 2 at 77-86. Pursuant to the oral plea agreement, the

      State amended Count 1 to a Level 5 felony, and Allen agreed to plead guilty to

      Counts 1-3 with the understanding that the sentences on Counts 1 and 2 would

      run concurrently and the total executed sentence, including the habitual

      enhancement, would be capped at eight years. Id. at 77-80. Allen waived

      initial hearing on the amended charges, and his attorney stated, “He’s aware of

      the charges against him and the difference in these charges as compared to the

      charges that he’s already been initialed on.” Id. at 77-78, 81. Allen’s attorney

      explained to him that the State had agreed to reduce the dealing in

      methamphetamine charge from a Level 4 felony to a Level 5 felony “[a]nd then

      they also changed the habitual [from a Level 3 to a Level 4 felony] . . . now

      they’ve changed it [Count 1] to a Level 5 so they have to change that [the

      habitual charge] again. And so all we’re doing is allowing them to reduce your

      charges so that we can plead guilty to those reduced charges as you and I had

      discussed.” Id. at 78-79. Counsel also explained to Allen that prior to this

      latest change, he was potentially facing thirty-two years (twelve years for the

      Level 4 felony plus twenty years for the habitual) but that now, with these latest

      amendments, he could receive only a maximum of twelve years (six years for

      the Level 5 felony plus six years for the habitual). Id. at 79-80. Allen stated that

      he understood these changes and proceeded to admit that he both manufactured

      methamphetamine and possessed methamphetamine on March 8, 2017 and

      that he had prior unrelated felony convictions for Class B felony manufacturing
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2952 | August 26, 2019   Page 4 of 7
      methamphetamine in the 2011 case, Class C felony battery in the 2004 case,

      and Class C felony battery, Class D felony leaving the scene of an accident, and

      Class D felony possession of marijuana in the 1994 case. Id. at 80, 84-85. In

      doing so, Allen pleaded guilty to Counts 1 and 2 and admitted to being a

      habitual offender in Count 3. Id. at 85.


[7]   On October 31, 2018, the trial court sentenced Allen and imposed concurrent

      six-year sentences on Allen’s convictions for dealing in methamphetamine,

      Count 1, and possession of methamphetamine, Count 2 and enhanced the

      sentence on Count 1 by two years for the habitual offender adjudication,

      resulting in an aggregate eight-year sentence. Appellant’s App. Vol. II at 6; Tr.

      Vol. 2 at 99. The sentencing order was signed and file-stamped on October 31,

      but was not entered into the CCS until November 9, 2018. Appellant’s App. Vol.

      II at 6, 24-25. On November 7, 2018, the State filed a motion to dismiss

      “Amended Count 3 in this cause for the reason that original Count 3 was

      dismissed prior to the amendment.” Id. at 145. The trial court granted the

      motion on the same day. Id. at 147. Allen now appeals.


                                     Discussion and Decision
[8]   Allen challenges the validity of his status as a habitual offender, contending that

      it was not proper because, at the time the sentencing order was filed, the

      habitual offender allegation had been dismissed. Specifically, Allen asserts that

      his habitual offender enhancement should be vacated because no basis for the

      admission and enhancement existed when the State’s motion to dismiss


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2952 | August 26, 2019   Page 5 of 7
       “Amended Count 3” was granted by the trial court, which was the basis for

       Allen’s admission to being a habitual offender and the resulting two-year

       enhancement.


[9]    Allen is challenging the validity of his status as a habitual offender after he

       pleaded guilty to such enhancement and is not challenging the trial court’s

       exercise of sentencing discretion. “In Indiana, however, it is well-settled that a

       person who pleads guilty cannot challenge his convictions by means of direct

       appeal, and the same is true of one who admits to habitual offender status.”

       Robey v. State, 7 N.E.3d 371, 383 (Ind. Ct. App. 2014) (citing Kling v. State, 837

       N.E.2d 502, 504 (Ind. 2005); Stanley v. State, 849 N.E.2d 626, 630 (Ind. Ct.

       App. 2006)), trans. denied. One of the things a person gives up by pleading

       guilty is the right to a direct appeal. Tumulty v. State, 666 N.E.2d 394, 395-96

       (Ind. 1996). In Tumulty, our Supreme Court addressed the issue of whether a

       defendant could directly appeal the trial court’s acceptance of a guilty plea to a

       habitual offender allegation on the ground that such lacked a factual basis. The

       Court noted that one consequence of pleading guilty is restriction of the ability

       to challenge the conviction on direct appeal. Id. at 395. The Court found this

       restriction applicable to claims such as that raised by Tumulty, thus treating a

       habitual offender adjudication following a guilty plea in the same manner as a

       conviction. Id. at 396. The Court held that the vehicle for relief in such

       situations is found in Indiana Post-Conviction Rule 1. Id.


[10]   Having pleaded guilty to the habitual offender allegation and admitted to his

       status as a habitual offender, Allen cannot now seek to challenge the admission

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2952 | August 26, 2019   Page 6 of 7
       and subsequent enhancement on direct appeal.4 We, therefore, dismiss Allen’s

       appeal challenging his status as a habitual offender.5


[11]   Dismissed.


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




       4
         We observe that, in trying to avoid dismissal for challenging his status as a habitual offender after a plea
       agreement, Allen phrases his challenge as being to the sentence or enhancement given. However, we cannot
       simply vacate the sentence ordered for Allen’s habitual offender admission. Under Indiana Code section 35-
       50-2-8(i), the trial court was required to sentence Allen to a minimum of two years, which is the sentence he
       received. See Ind. Code § 35-50-2-8(i)(2) (“The court shall sentence a person found to be a habitual offender
       to an additional fixed term that is between: . . . two (2) years and six (6) years, for a person convicted of a
       Level 5 or Level 6 felony.”).
       5
         Allen’s argument is an attempt to preserve the benefit of his plea agreement while getting rid of a part of the
       requirements of the agreement. Allen’s admission as to being a habitual offender was a part of his plea
       agreement with the State, and there was no evidence that the parties would have entered into the agreement
       without the habitual offender admission and enhancement. Therefore, if we were to find that the habitual
       offender enhancement portion of the plea agreement was erroneous, the remedy would be to vacate the
       whole plea agreement and remand the case to the trial court and return the parties to their relative positions
       before the plea agreement occurred, where Allen faced a potential sentence of thirty-two years.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2952 | August 26, 2019                       Page 7 of 7
