Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE:                                   ATTORNEYS FOR APPELLEE:

JOHN T. BRIGHTWELL                                  GREGORY F. ZOELLER
Pendleton Correctional Facility                     Attorney General of Indiana
Pendleton, Indiana
                                                    BRIAN REITZ
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                              FILED
                                                                           Dec 27 2012, 9:44 am


                               IN THE                                               CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and

                     COURT OF APPEALS OF INDIANA                                         tax court




JOHN T. BRIGHTWELL,                                 )
                                                    )
       Appellant-Petitioner,                        )
                                                    )
               vs.                                  )       No. 45A03-1205-CR-218
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Respondent.                         )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Diane R. Boswell, Judge
                               Cause No. 45G03-9302-CF-32



                                        December 27, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                        Case Summary

       John T. Brightwell appeals the trial court’s denial of his motion to correct erroneous

sentence. The sole issue presented for our review is whether the trial court abused its

discretion when it denied the motion. The State concedes error. Finding an abuse of

discretion, we reverse and remand for correction of the sentencing order.

                               Facts and Procedural History

       The facts indicate that a jury convicted Brightwell of class A felony attempted murder

and class A felony robbery. The jury also found Brightwell to be a habitual offender. On

March 29, 1994, the trial court sentenced Brightwell in relevant part as follows:

       The Court being duly advised and having considered the written presentence
       investigation report, now sentences the defendant on conviction of the crimes
       of Count I – Attempted Murder, a Class A felony; Count II – Robbery, a Class
       A felony, which is reduced to Robbery, a Class C felony because of double
       jeopardy concerns; and Count III – Habitual Offender, to a term of thirty-five
       (35) years in count I; six (6) years in count II; and thirty (30) years in count III.
       The sentence in counts I & II are to run concurrently. The sentence in count
       III is to run consecutive to the sentence in count I, for a total sentence of sixty-
       five (65) years imprisonment.

Appellant’s App. at 9. On April 23, 2012, Brightwell filed a motion to correct erroneous

sentence pursuant to Indiana Code 35-38-1-15, which the trial court denied. This appeal

ensued.

                                   Discussion and Decision

       Brightwell contends, and the State concedes, that the trial court abused its discretion

when it denied Brightwell’s motion to correct erroneous sentence. Specifically, the trial

court erred when it entered a separate thirty-year habitual offender sentence and also failed to


                                                2
specify which conviction it was enhancing based upon the habitual offender finding. It is

well settled that a habitual offender finding does not constitute a separate crime, nor does it

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

results in a sentence enhancement imposed upon the conviction of a subsequent felony. Id.

Moreover, when a defendant is convicted of multiple offenses, the trial court must impose the

resulting penalty enhancement on only one of the convictions and must specify the conviction

so enhanced. McIntire v. State, 717 N.E.2d 96, 102 (Ind. 1999). Failure to specify requires

remand to the trial court to correct the sentence with regard to the habitual offender

enhancement. Id.

        Therefore, we reverse the trial court’s denial of Brightwell’s motion to correct

erroneous sentence and remand with instructions to correct the sentencing order to reflect a

thirty-year habitual offender enhancement and to assign that enhancement to Brightwell’s

class A felony attempted murder conviction.1

        Reversed and remanded.

KIRSCH, J., and MATHIAS, J., concur.




        1
          We agree with the State that the trial court must attach the habitual offender enhancement to
Brightwell’s class A felony attempted murder conviction. Pursuant to Indiana Code Section 35-50-2-8, a
habitual offender enhancement cannot be more than three times the advisory sentence for the underlying felony
and may not exceed thirty years. For class C felony robbery, that would result in a maximum twelve year
enhancement as opposed to the thirty-year enhancement clearly intended by the trial court in its original
sentence.

                                                     3
